Sclafani Petroleum, Inc. v. Calabro

173 A.D.3d 1042

100 N.Y.S.3d 558 (Mem)

In the Matter of SCLAFANI PETROLEUM, INC., etc., et al., Nonparty-Appellants.

v.Melissa CALABRO, etc., Petitioner-Respondent;

Maureen Sclafani, et al., Respondents-Appellants, et al., Respondent;

Putnam County National Bank of Carmel, Intervenor-Respondent.

2017–09923

Index No. 1573/16

Supreme Court, Appellate Division, Second Department, New York.

Submitted—April 1, 2019

June 19, 2019

Catania, Mahon, Milligram & Rider, PLLC, Newburgh, N.Y. (Jeffrey S. Sculley of counsel), for nonparty-appellants and respondents-appellants.

McCabe & Mack, LLP, Poughkeepsie, N.Y. (Richard R. DuVall of counsel), for intervenor-respondent.

JOHN M. LEVENTHAL, J.P., SHERI S. ROMAN, HECTOR D. LASALLE, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

ORDERED that the order is affirmed insofar as appealed from, with costs.

A judgment of the Supreme Court, Putnam County, dated May 17, 2011, awarded Putnam County National Bank of Carmel (hereinafter the bank) the principal sum of $2,081,959.01 against Louis Sclafani (hereinafter the decedent). The decedent died on August 26, 2012. In August 2015, the executor of the decedent's estate commenced this proceeding pursuant to Business Corporation Law § 1104–a for the judicial dissolution of Sclafani Petroleum, Inc., and Liberty Petroleum, Inc. (hereinafter together the corporations), two closely held corporations in which the decedent had held shares. Maureen Sclafani and Jerome Sclafani (hereinafter together the Sclafanis), who owned shares in the corporations, exercised their right of election pursuant to Business Corporation Law § 1118 to purchase the shares held by the estate at fair value. The record indicates that the estate had agreed, subject to court approval, to accept a buyout of the estate's interest in both corporations for substantially less than an appraised value. Subsequently, the bank, as a judgment creditor of the estate, moved, inter alia, pursuant to CPLR 1012(a) and 1013for leave to intervene in the proceeding. The corporations and the Sclafanis opposed the motion. In the order appealed from, the Supreme Court, among other things, granted that branch of the bank's motion. The corporations and the Sclafanis appeal.

Upon a timely motion, a person is permitted to intervene in an action as of right, inter alia, "when the action involves the disposition or distribution of, or the title or a claim for damages for injury to, property and the person may be affected adversely by the judgment" ( CPLR 1012[a][3] ; see Global Team Vernon, LLC v. Vernon Realty Holding, LLC , 93 A.D.3d 819, 820, 941 N.Y.S.2d 631 ). Additionally, the court, in its discretion, may permit a person to intervene, among other things, "when the person's claim or defense and the main action have a common question of law or fact" ( CPLR 1013 ; see Roman Catholic Diocese of Brooklyn, N.Y. v. Christ the King Regional High Sch. , 164 A.D.3d 1394, 1396, 84 N.Y.S.3d 182 ; Trent v. Jackson , 129 A.D.3d 1062, 11 N.Y.S.3d 682 ). However, "[w]hether intervention is sought as a matter of right under CPLR 1012(a), or as a matter of discretion under CPLR 1013, is of little practical significance, since intervention should be permitted ‘where the intervenor has a...