                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered:   March 5, 2015                   518936
                                                       518935
________________________________

GREGORY MAVENTE,
                    Respondent,
     v

ALBANY MEDICAL CENTER HOSPITAL
   et al.,
                    Respondents.

TIMOTHY J. CARTER et al., as
   Trustees of the PLUMBERS &
   STEAMFITTERS LOCAL NO. 7
   WELFARE FUND,
                    Proposed
                    Intervenors-
                    Appellants.

(Action No. 1.)
_______________________________             MEMORANDUM AND ORDER

GREGORY MAVENTE,
                    Respondent,
     v

ELLIS HOSPITAL et al.,
                    Respondents,
                    et al.,
                    Defendants.

TIMOTHY J. CARTER et al., as
   Trustees of the PLUMBERS &
   STEAMFITTERS LOCAL NO. 7
   WELFARE FUND,
                    Proposed
                    Intervenors-
                    Appellants.

(Action No. 2.)
________________________________
                               -2-                 518936
                                                   518935

Calendar Date:   January 9, 2015

Before:   McCarthy, J.P., Rose, Egan Jr. and Devine, JJ.

                            __________


      Robert S. Catapano-Friedman, PC, Albany (Robert S.
Catapano-Friedman of counsel), for proposed intervenors-
appellants.

      Grasso Rodriguez Grasso & Burke, PLLC, Schenectady
(Christopher R. Burke of counsel), for Gregory Mavente,
respondent.

      Maynard, O'Connor, Smith & Catalinotto, LLP, Albany (Edwin
J. Tobin Jr. of counsel), for Albany Medical Center Hospital and
another, respondents.

      Thorn Gershon Tymann and Bonanni, LLP, Albany (Paul D.
Jureller of counsel), for Ellis Hospital, respondent.

      Burke, Scolamiero, Mortati & Hurd, LLP, Albany (Judith B.
Aumand of counsel), for David Ford and another, respondents.

                            __________


McCarthy, J.P.

      Appeals from two orders of the Supreme Court (Reilly Jr.,
J.), entered March 4, 2014 in Schenectady County, which denied
motions by the trustees of the Plumbers & Steamfitters Local No.
7 Welfare Fund to intervene in both actions.

      Plaintiff commenced these two medical   malpractice actions.
The trustees of the Plumbers & Steamfitters   Local No. 7 Welfare
Fund (hereinafter the Fund), a self-insured   employee benefit plan
that allegedly paid $537,273.12 for medical   treatment provided to
plaintiff that is related to these actions,   moved to intervene in
                              -3-                518936
                                                 518935

both actions. According to the benefit plan documents, the Fund
has first priority to any recovery that plaintiff obtains through
verdict or settlement (regardless of how it is structured), and
plaintiff will lose his rights to future benefits if he fails to
cooperate with the Fund and comply with the plan in this regard.
Plaintiff also signed a subrogation agreement wherein he
acknowledged his obligation to reimburse the Fund – prior to him
or anyone on his behalf receiving any money – for the full amount
of benefit payments that he has received, assigned to the Fund
the right to that money, and agreed that a subrogation lien
attached to any recovery. Supreme Court denied the Fund's
motions, prompting the Fund's appeals.

      Supreme Court properly denied the portions of the Fund's
motions seeking to intervene as of right. As relevant here, any
person may intervene as of right "when the representation of the
person's interest by the parties is or may be inadequate and the
person is or may be bound by the judgment" (CPLR 1012 [a] [2]).
The Fund would be bound by any judgment because plaintiff has
sought to recover medical costs, as well as other damages, in his
complaints in these actions. Despite the Fund's argument,
however, it appears that plaintiff is and will adequately
represent the Fund's interests. At oral argument, the Fund
acknowledged that plaintiff's counsel is competent and will act
in good faith. Plaintiff has an incentive to maximize his
recovery, considering that he will not receive anything
personally if he obtains a settlement or verdict of $537,273.12
or less. Plaintiff is also contractually bound to protect the
Fund's right to subrogation and has agreed to a lien on any
recovery (see Humbach v Goldstein, 229 AD2d 64, 68-69 [1997], lv
dismissed 91 NY2d 921 [1998]; compare Teichman v Community Hosp.
of W. Suffolk, 87 NY2d 514, 520-521 [1996]). Supreme Court
correctly found that plaintiff is adequately representing the
Fund's interests, and any argument that plaintiff may not do so
in the future is pure speculation (see Berry v St. Peter's Hosp.
of City of Albany, 250 AD2d 63, 69 [1998], lv dismissed 92 NY2d
1045 [1999]; see also St. Joseph's Hosp. Health Ctr. v Department
of Health of State of N.Y., 224 AD2d 1008, 1008-1009 [1996]).
                                 -4-               518936
                                                   518935

      Supreme Court did not err in denying the portions of the
Fund's motions seeking permission to intervene. A court may
permit intervention, in its discretion, when the person's claim
has a common question of law or fact with the main action, but
"the court shall consider whether the intervention will unduly
delay the determination of the action or prejudice the
substantial rights of any party" (CPLR 1013). Although the
Fund's asserted claim has common questions of law and fact with
plaintiff's claims, intervention was properly denied.
Intervention would cause some delay because it would lead to
duplicative discovery and motion practice, as the Fund and
plaintiff could each separately seek demands and relief from the
multiple defendants (see Quality Aggregates v Century Concrete
Corp., 213 AD2d 919, 921 [1995]). This could also cause some
prejudice to defendants, who would be required to respond to
similar repetitive demands and motions, as well as the
possibility of the Fund calling additional witnesses or even
experts at trial. The Court of Appeals has even acknowledged
that allowing a provider of medical benefit payments to intervene
could create tension between the injured party and his or her
insurer,1 and "inevitably complicates settlement negotiations"
(Fasso v Doerr, 12 NY3d 80, 90 [2009]; see Humbach v Goldstein,
229 AD2d at 68). Hence, Supreme Court did not err or abuse its
discretion in denying the Fund's motions to intervene (see Berry
v St. Peter's Hosp. of City of Albany, 250 AD2d at 68-69; Matter
of Pier v Board of Assessment Review of Town of Niskayuna, 209
AD2d 788, 789 [1994]).

         Rose, Egan Jr. and Devine, JJ., concur.




     1
        Although the Fund is not an insurance company, the Court
of Appeals' reasoning on this issue is equally applicable to an
employee benefit plan.
                              -5-                  518936
                                                   518935

      ORDERED that the orders are affirmed, with one bill of
costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
