Matter of Rapoport

Matter of Rapoport 2012 NY Slip Op 00252 Decided on January 17, 2012 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 January 17, 2012
Tom, J.P., Catterson, DeGrasse, Richter, Manzanet-Daniels, JJ. 6571N-
666/08 6571NA

[*1]In re Daniel Z. Rapoport, et al., Executors of the Estate of Boris Lurie, Deceased.

American Friends of New Communities in Israel Inc., et al., Proposed Intervenors-Appellants, Richard Nadelman, et al., Petitioners-Respondents, Boris Lurie Art Foundation, Respondent-Respondent, Elizabeth Goodman, Respondent.


Wimpfheimer & Wimpfheimer, New York (Michael C.
Wimpfheimer of counsel), for appellants.
Marino & Chambers, P.C., White Plains (Frank P. Marino of
counsel), for Richard Nadelman and Daniel Rapoport,
respondents.
DLA Piper US, LLP, New York (Kiran N. Gore of counsel), for
Boris Lurie Art Foundation, respondent.
Eric T. Schneiderman, Attorney General, New York (Ann P.
Zybert of counsel), for Attorney General, respondent.

Order, Surrogate's Court, New York County (Nora Anderson, S.), entered May 14, 2010, which denied the proposed intervenors' motion to intervene, unanimously affirmed, without costs. Appeal from decree, same court and Surrogate, entered on or about May 11, 2010, which reformed Articles Second and Third of the testator's will dated December 28, 2005, unanimously dismissed, without costs.

The Surrogate properly denied the proposed intervenors' request to intervene in the reformation proceeding regarding the testator's will. The proposed intervenors are not named in the will — a fact that they concede — and cannot fulfill the requirement under CPLR 1012 that the judgment may adversely affect their interests (see Matter of Vaughn, 267 AD2d 763, 763-64 [1999]; Matter of Flemm, 85 Misc 2d 855, 857 [1975]). Indeed, the proposed intervenors base their argument in favor of intervention on the occurrence of a contingent event that might or [*2]might not occur at an indeterminate time in the future. The distribution, if any, would rest in the executors' sole discretion. Thus, the proposed intervenors have no standing to intervene (see Matter of May, 213 AD2d 838, 839 [1995], lv dismissed 85 NY2d 1032 [1995]).

The proposed intervenors' appeal from the reformation decree is improper because they were properly denied leave to intervene, and the appeal therefore must be dismissed.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 17, 2012

CLERK