Upstate Natl. Bank v. Kande

Opinion

Upstate Natl. Bank v Kande

2026 NY Slip Op 05130

August 26, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Upstate National Bank, plaintiff,

v

Henry Kandel, et al., defendants, Klara Kandel, defendant-appellant; Ashley Kandel, nonparty-appellant; U.S. Bank National Association, etc., nonparty-respondent.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 26, 2026

2023-06125, 2023-06127, (Index No. 3654/05)

Francesca E. Connolly, J.P.

Cheryl E. Chambers

William G. Ford

James P. McCormack, JJ.

Levkovich & Associates, P.C., Brooklyn, NY (Alexander Levkovich of counsel), for defendant-appellant and nonparty-appellant.

McGlinchey Stafford PLLC (Hinshaw & Culbertson LLP, New York, NY [Mitra Paul Singh], of counsel), for nonparty-respondent.

[*1]

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Klara Kandel and nonparty Ashley Kandel appeal from two orders of the Supreme Court, Nassau County (David P. Sullivan, J.), both entered June 12, 2023. The first order, insofar as appealed from, granted that branch of the motion of nonparty U.S. Bank National Association which was to amend the caption to substitute Chani Kandel and the unknown heirs and distributees of the estate of Henry Kandel for the defendant Henry Kandel, and denied that branch of the cross-motion of the defendant Klara Kandel and nonparty Ashley Kandel which was pursuant to CPLR 1012 for leave for Ashley Kandel to intervene in the action. The second order, insofar as appealed from, granted that branch of the motion of nonparty U.S. Bank National Association which was to amend the caption to substitute Chani Kandel and the unknown heirs and distributees of the estate of Henry Kandel for the defendant Henry Kandel, and amended the caption accordingly.

ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs.

On June 12, 2002, Henry Kandel (hereinafter the decedent) executed a note in the amount of $405,000 in favor of Upstate National Bank (hereinafter Upstate). The note was secured by a mortgage on certain real property located in Nassau County.

On March 10, 2005, Upstate commenced this action to foreclose the mortgage against the decedent, among others. The defendant Klara Kandel (hereinafter Klara), the decedent's wife, was served with the summons and complaint as a "John Doe" defendant, but she did not answer the complaint. In an order dated October 30, 2007, the Supreme Court granted Upstate's motion for summary judgment on the complaint and for an order of reference, and amended the caption to substitute Klara for "John Doe #2." The decedent died on October 22, 2010.

In March 2021, U.S. Bank National Association (hereinafter U.S. Bank), assignee of [*2]Upstate, moved, inter alia, to amend the caption to substitute Chani Kandel and the unknown heirs and distributees of the decedent's estate (hereinafter the unknown heirs) for the decedent. In February 2023, Klara and nonparty Ashley Kandel (hereinafter Ashley, and together with Klara, the Kandels) opposed U.S. Bank's motion and cross-moved, among other things, pursuant to CPLR 1012 for leave for Ashley to intervene in the action, contending that Ashley was the decedent's daughter, and thus, had an interest in the property and would be adversely affected by any judgment in the action. Klara submitted an affirmation in which she set forth the decedent's known heirs. U.S. Bank opposed the cross-motion as untimely. In an order entered June 12, 2023, the Supreme Court, inter alia, granted that branch of U.S. Bank's motion and denied that branch of the Kandels' cross-motion. In a second order, also entered June 12, 2023, the court, among other things, granted that branch of U.S. Bank's motion and amended the caption accordingly. The Kandels appeal from both orders.

Upon a timely motion, a person is permitted to intervene as of right in an action involving the disposition of property where that person may be adversely affected by the judgment (see CPLR 1012[a][3]; Deutsche Bank Natl. Trust Co. v Allenstein, 201 AD3d 783, 784-785; Wells Fargo Bank, N.A. v McLean, 70 AD3d 676, 676-677). "[I]n determining whether a motion to intervene is timely, a court should consider the time between the proposed intervenor's knowledge of the basis for the motion and the making of the motion, and whether any delay in seeking intervention caused prejudice to a party" (Onewest Bank, FSB v Harrington, 213 AD3d 682, 683). Here, that branch of the Kandels' cross-motion which was pursuant to CPLR 1012 for leave for Ashley to intervene in the action, which was made more than 12 years after the decedent's death and almost 2 years after U.S. Bank moved, inter alia, to amend the caption, was untimely (see U.S. Bank, N.A. v Tsimbalisty, 181 AD3d 749, 750-751; Fulton Holding Group, LLC v Lindoff, 165 AD3d 1057, 1058).

The Kandels' contention regarding that branch of U.S. Bank's motion which was to amend the caption to substitute Chani Kandel and the unknown heirs for the decedent is improperly raised for the first time on appeal (see MTGLQ Invs., L.P. v Tupper, 228 AD3d 753, 754).

Accordingly, the Supreme Court properly granted that branch of U.S. Bank's motion which was to amend the caption to substitute Chani Kandel and the unknown heirs for the decedent, and properly denied that branch of the Kandels' cross-motion which was pursuant to CPLR 1012 for leave for Ashley to intervene in the action.

CONNOLLY, J.P., CHAMBERS, FORD and MCCORMACK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court