Zehnder v. State

266 A.D.2d 224, 697 N.Y.S.2d 347, 1999 N.Y. App. Div. LEXIS 11082

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 1, 1999
• Status: Published

Opinion

—In a proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to compel the respondents to interpret certain provisions of the New York State Uniform Fire Prevention and Building Code in a manner consistent with the petitioners’ interpretation, the proposed intervenor Harold Rosenbaum appeals from so much of an order of the Supreme Court, Westchester County (Nicolai, J.), entered June 26, 1998, as denied his motion for leave to intervene, and the proposed intervenors Ginsburg & Ginsburg Architects, DHI Enterprises, Inc., Martin Ginsburg, Samuel Ginsburg, Marsam Development, Inc., SMG Associates, and Ginsburg Development Corp., separately appeal from the same order.

Ordered that the notice of appeal of proposed intervenor Harold Rosenbaum is deemed to be an application for leave to appeal from the order dated June 26, 1998, and leave to appeal is granted; and it is further,

Ordered that the appeals of Ginsburg & Ginsburg Architects, DHI Enterprises, Inc., Martin Ginsburg, Samuel Ginsburg, Marsam Development, Inc., SMG Associates, and Ginsburg Development Corp. are dismissed, without costs or disbursements, for failure to perfect in accordance of the rules of this Court (see, 22 NYCRR 670.8 [e]) and for the further reason that no appeal lies as of right from an intermediate order in a CPLR article 78 proceeding (see, CPLR 5701 [b] [1]); and it is further,

Ordered that the order is affirmed insofar as appealed from by the proposed intervenor Harold Rosenbaum, without costs or disbursements.

The Supreme Court was correct in denying the motion of Harold Rosenbaum for leave to intervene in the absence of a proposed pleading (see, CPLR 1014; Rozewicz v Ciminelli, 116 AD2d 990, 991; Matter of Colonial Sand & Stone Co. v Flacke, 75 AD2d 894, 895; Mohawk Maintenance Co. v Drake, 29 AD2d 689; Matter of Carriage Hill v Lane, 20 AD2d 914; cf., Ryder v Travelers Ins. Co., 37 AD2d 797; Sterling Natl. Bank & Trust Co. v Ambassador Factors Corp., 86 AD2d 547). Bracken, J. P., Santucci, Goldstein and McGinity, JJ., concur.