

Phoenix Capital Fin. Ltd. v Axia Realty, LLC (2020 NY Slip Op 03619)





Phoenix Capital Fin. Ltd. v Axia Realty, LLC


2020 NY Slip Op 03619


Decided on June 25, 2020


Appellate Division, First Department


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


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



Decided on June 25, 2020

Renwick, J.P., Mazzarelli, Webber, Kern, Moulton, JJ.


11717 654934/17

[*1] Phoenix Capital Finance Ltd., Plaintiff-Respondent,
vAxia Realty, LLC, Defendant-Respondent. Spiros Milonas, Intervenor-Respondent, Antonia Milonas, Proposed Intervenor-Appellant.


Meyers Tersigni Feldman & Gray LLP, New York (Anthony L. Tersigni of counsel), for appellant.
Herrick, Feinstein LLP, New York (Michael Berengarten of counsel), for Phoenix Capital Finance Ltd., respondent.
Meister Seelig & Fein LLP, New York (Stephen B. Meister of counsel), for Axia Realty, respondent.

Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered July 10, 2019, which denied the motion of proposed intervenor Antonia Milonas (Antonia) for leave to intervene in the subject action, unanimously affirmed, without costs.
Antonia did not meet the requirements for intervention as a matter of right under CPLR 1012(a)(2), (3) to assert her interests or Axia Realty's derivatively (see Atlas MF Mezzanine Borrower, LLC v Macquarie Tex. Loan Holder LLC, 173 AD3d 608 [1st Dept 2019]), and the court properly exercised its discretion in declining to grant an intervention that would have delayed the resolution of the Phoenix action pursuant to the negotiated settlement (see State of New York v McLeod, 45 AD3d 282, 284 [1st Dept 2007], lv dismissed 10 NY3d 758 [2008]). The court correctly found that Antonia did not provide a basis to revisit the Referee's designation of her husband, Spiros, as the manager authorized to make litigation decisions, including settlement of the underlying debt collection action. Antonia can seek to vindicate her rights against Spiros in a pending matrimonial action or other action, rather than in this settled and discontinued action concerning Axia's obligation to Phoenix.
We have considered Antonia's remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JUNE 25, 2020
CLERK


