Key Bank v. Delahunt

227 A.D.2d 991, 643 N.Y.S.2d 815, 1996 N.Y. App. Div. LEXIS 7019

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 31, 1996
• Status: Published

Opinion

Order unanimously reversed on the law with costs and motion denied. Memorandum: Supreme Court erred in granting the motion of intervenor, Gary Burgess, to intervene as a defendant in an action commenced by plaintiff, Key Bank of New York (Key Bank). Intervenor had been served with a third-party complaint in that action and had defaulted. He moved to vacate the default judgment, which was denied, and the order denying that motion was affirmed by this Court (Key Bank v Delahunt, 204 AD2d 1084). Intervenor then moved to intervene as a defendant in the main action and to assert a counterclaim against Key Bank and a cross claim against defendant Chase Manhattan Bank. Had intervenor not defaulted in the third-party action, he would have been entitled to defend against the main action, as well as to assert any counterclaims and cross claims that he had against plaintiff and defendants (see, CPLR 1008; Siegel, NY Prac § 163 [2d ed]). Intervenor should not be permitted "to accomplish now what [he] could have done as of right but deliberately omitted to do earlier” (Siegel, NY Prac § 183, at 276 [2d ed]; see also, Krenitsky v Ludlow Motor Co., 276 App Div 511, lv dismissed 301 NY 609). The argument of intervenor that his default was not intentional is without merit; two courts have already concluded that intervenor failed to demonstrate a reasonable excuse for his default. (Appeal from Order of Supreme Court, Erie County, Cosgrove, J. — Intervention.) Present — Pine, J. P., Fallon, Doerr, Davis and Boehm, JJ.