Matter of W.D. v Aliaga

[*1] Matter of W.D. v Aliaga 2012 NY Slip Op 50600(U) Decided on April 3, 2012 Supreme Court, Orange County Ecker, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 3, 2012
Supreme Court, Orange County

In the Matter of the Application of W.D., Jr., an infant, by his father and natural guardian, W.D., for leave to Compromise and Settle a claim for personal injuries of said infant, Plaintiff,

against

Gustavo A. Aliaga, Defendant.



2276/2011



Luis Guerrero, Esq.

Attorney for Petitioner-Plaintiff

254 Seaman Avenue, Suite A3

New York, New York 10034

Michael Isgur, Esq.

Attorney for Intervenors

125 Wickham Avenue

Middletown, New York 10940

Lawrence H. Ecker, J.

Mohammed Sarhan and Nazira Emara bring this motion to intervene by permission pursuant to CPLR 1013. In their proposed complaint, they submit they were tenants in an apartment located at 212 East Main Street, Middletown, New York in Orange County who sustained personal injuries and property damage as a result of a fire at the subject premises on February 25, 2009. The premises are a two family residence owned by defendant Gustavo A. Aliaga. Apparently neither movant has commenced an action against Aliaga or any other party claimed to have been responsible for their losses. The motion to intervene was filed on May 31, 2011. The proposed complaint carries the caption Mohamed Sarhan and Nazira Emara v. Gustavo Aliaga.

Movants seek intervention in the above-captioned proceeding that is pending the court's approval of a proposed infant's compromise brought by the infant's father, W. D. on behalf of his son, W. D., Jr. There is no summons or complaint filed in this case. Rather, plaintiff, who should be more accurately designated as petitioner [see, infra], proceeded pursuant to CPLR §1207, which provides "(I)f no action has been commenced, a special proceeding may be commenced upon petition of such a representative [FN1] for settlement of any claim by the infant...in any court where an action for the amount of the proposed settlement could have been commenced."

The infant's compromise petition alleges the infant, then 6 ½ years old, was seriously injured in the same fire that is the subject matter of movants' proposed complaint. According to his father's affidavit, the fire started in another apartment located in the two family home, and ultimately spread through the entire house. The infant was trapped inside when the fire spread to their apartment. He sustained significant burn injuries described as "deep partial thickness burns to 14% of his bilateral upper extremities, hands, face and back, among other injuries. Surgery was performed at the Westchester Medical Center. According to an entry in the hospital's Progress Notes dated March 9, 2009, but not mentioned in the petitioner or the petitioner's affidavit or the attorney's affirmation, the child was left alone for a short period of time when the fire broke out. The petition further states the child "will need more medical treatment in the future, therefore, his condition remains guarded."

The proposed settlement would award the child $290,000.00 less an attorney's fee of one third (1/3) plus expenses. The remaining $10,000.00 of the $300,000.00 coverage would go toward the property damage incurred by members of the infant's family, including the petitioner/father, all of whom apparently resided in the subject premises. The petition does not state whether they resided in the same apartment as the infant. The petitioner's attorney, in his affirmation in support of the proposed settlement, states that he represents all of these [*2]individuals, as well as the infant, which raises the issue of conflict of interest, and the necessity of appointing a guardian ad litem who has no interest in this matter.

It should be noted petitioner's attorney last appeared before this court on April 22, 2011, at which time the court issued certain directives that appear not to have been followed as yet. The court's concerns included: 1) the ramifications, if any, that might constitute parental neglect for leaving the child alone; 2) the failure to include a proposed structured settlement to protect the infant's monetary recovery such that it would not be available to him in its entirety upon his 18th birthday; 3) the allocation of the $300,000.00 single limit policy as $290,000.00 for the infant and $10,000.00 for property damage allegedly sustained by other family members when the insurance policy in question provides only $500.00 for property damage to others; 4) the appropriateness of the attorney's fee requested of one third (1/3) of the recovery plus expenses; 5) the lack of a physician's affirmation regarding the child's present medical condition; and 6) further evidence as to the assets of the defendant landlord, Gustavo A. Aliaga, who it is claimed was responsible for the fire and the child's injuries. To date, none of this information has been provided. The court further notes that there is no consent provided to the court from the defendant's insurance carrier that this matter is settled as represented, other than petitioner's attorney's affirmation asserting this.

The court now turns to movants' application for intervention. As noted, supra, to the court's knowledge, they have not filed a separate action in this matter. As such, the statute of limitations has run, in that more than three years have passed since the fire on February 25, 2009. When a court allows permissive intervention to occur, for the benefit of a plaintiff, the statute of limitations does not apply, and the intervening action relates back to the date of the occurrence complained of in the proceeding already pending. Town of Moreau v. General Electric Company, 199 AD2d 595, 597 (3d Dept 1993); Key Intl. Mfg. v. Morse/Diesel, Inc., 142 AD2d 448, 457-458 (2d Dept 1988). This relation doctrine is significant in that if movants' motion is granted, they will be conferred a benefit, i.e., the avoidance of a successful statute of limitations defense, to which they are not otherwise entitled.

The court recognizes that (1) pursuant to CPLR §1207, the petition for permission to compromise an infant's claim is a special proceeding, even when no summons or complaint was served; (2) a special proceeding is an action, as defined in CPLR §105(b); and (3) pursuant to CPLR §1013, permissive intervention may be granted, in the court's discretion, when the main action and the intervenor's action have a common question of law or fact. Given these statutory provisions, there are clearly common questions of law and fact that are capable of being adjudicated in one trial, either by way of joint trial or consolidation, depending upon underlying considerations when applicable. See CPLR §602. As previously noted, movants' proposed party defendant, the landlord of the subject premises, or his insurance carrier, have not appeared as yet, or provided written consent to the proposed infant's compromise.

Against this factual and procedural background, the court must determine the appropriate exercise of discretion, as prescribed in CPLR §1013.

CPLR §1013 provides:

Upon timely motion, any person may be permitted to [*3]

intervene in any action when a statute of the state confers

a right to intervene in the discretion of te court, or when

the person's claim or defense and the main action have

a common question of law or fact. In exercising its

discretion, the court shall consider whether the intervention

will unduly delay the determination of the action or

prejudice the substantial rights of any party.

As the Practice Commentary instructs, the statute specifies three factors that are relevant to the court's exercise of discretion: the potential for undue delay in the determination of the action, the potential for substantial prejudice to any of the original parties and the timeliness of the motion to intervene. Alexander, Practice Commentary to CPLR §1013 (McKinney's Cons. Law of New York, Book 7B [1997]), p.183; American Home Mortgage Servicing, Inc. v. Sharrocks, 92 AD3d 620 (2d Dept 2012); A.F.C. Enterprises Inc. v. NYC School Constr. Auth., 71 AD3d 925 (2d Dept 2010).In this case, if intervention is permitted, then the landlord, as the presumptive defendant, must be brought into the case. Whether or not this requires service upon the landlord/defendant by both the petitioner for the infant and the movants is an issue this court need not address at this juncture. If this case proceeds with the infant and the movants as plaintiffs, pre-trial proceedings shall ensue that will take substantial time to complete. As to the infant, his entitlement to the bulk of the insurance proceeds may well be diminished if there is a recovery in favor of the movants. Further, the defendant landlord's inability to invoke the statute of limitations as a defense against the movants will further diminish the infant's entitlement to the available insurance proceeds.Finally, the motion to intervene was filed on May 31, 2011, more than 27 months after the date of the fire. J P Morgan Chase Bank, N.A. v. Edelson, 90 AD3d 996 (2d Dept 2011) (Supreme Court properly denied motion in view of undue delay in seeking leave to intervene); Rectory Realty Assoc. V. Town of Southampton, 151 AD2d 737, 738 (2d Dept 1989) (motion to intervene made more than a year after property owners became aware of zoning dispute could not be considered timely).

The court is responsible for protecting the interests of the infant when a proposed compromise is put before it for approval. As aforesaid, there remain issues to be satisfactorily resolved as identified by the court, supra, that have prevented the approval of the compromise order. Notwithstanding, in weighing the equities between the infant's interests and the movants' interests and in the due exercise of its discretion, the court determines that the proposed intervention will indeed prejudice the infant's interests, particularly if it bears out that the landlord/defendant has no assets other than the insurance proceeds.[FN2]

In Berry v. St. Peter's Hospital, 250 AD2d 63, 68 (3d Dept 1998), a case involving a health insurance carrier's application to intervene in a medical malpractice [*4]action in the hope of recouping by way of subrogation the medical payments it had thus far paid for the plaintiff's care, the Appellate Division, in reversing the trial court's decision permitting intervention, stated:

In the case at bar, there is adequate evidence in the

record that the liability coverage of the remaining

defendants is substantially less than the total possible

provable damages. Supreme Court was clearly

presented with a situation where the potential existed

that "the sources of recovery ultimately available

[might be] inadequate to fully compensate the insured[s]

for their losses', such that the intervenors—who have been

paid...to assume the risk of loss— [have no right to share

in the proceeds of the insured[s'] recovery from the

tortfeasor," Winkelmann v. Excelsior Ins. Co., 85 NY2d

577, 588 (1995).

The case now before this court does not deal with the issue of subrogation and recovery of expenses. It does, however, deal with the extent of a tortfeasor's resources available to an injured party, the infant, who in a timely fashion presented his claims to the court, well before the expiration of the statute of limitations, which was tolled during his infancy in any event. See CPLR §208. Movants certainly knew, as of the date the fire occurred on February 25, 2009, that they had sustained losses. It is reasonable to conclude that the landlord might be viewed as a blameworthy party for their losses. They were free, anytime after that date, to commence an action against the landlord. This they failed to do. That they now seek to take advantage of the permissive intervention statute, when the statute of limitations has run against their separate claims, falls squarely within the ambit of prejudice and undue delay as to the infant's interests.[FN3] Kripke v. Benedictine Hospital, 255 AD2d 725 (3d Dept 1998).

Given these facts, the prejudice that will ensue to the infant, and the untimeliness of movants' application, the court will not condone movants' late entry in this special proceeding.Accordingly, the motion for permissive intervention pursuant to CPLR §1013 is denied.

Petitioner W.D.'s counsel is hereby directed to provide the court with the previously requested documentation, as outlined, supra, by April 30, 2012, and to serve a copy of this Decision & Order upon State Farm Insurance Company, or its counsel, who are directed to appear, together with petitioner, the infant, and counsel on May 14, 2012 at 10:30 a.m. [*5]

The foregoing constitutes the decision and order of the court.

Dated: Goshen, New York

April 3, 2012

E N T E R:

______________________________

HON. LAWRENCE H. ECKER, J.S.C.

Footnotes

Footnote 1: In this case the infant's parent, W. D., having legal custody, as delineated in CPLR §1207, is the infant's representative.

Footnote 2: The court notes that the attorney for the petitioner has not produced any evidence as to the equity, if any, in the subject premises, or, as already noted, in any other real property or personal property interests of the landlord/defendant.

Footnote 3: Movants' instant motion, filed on May 31, 2011, prior to the expiration of the statute of limitations, does not work as an estoppel as to the applicability of the statute of limitations. Rather, movants could have commenced an action against the landlord/defendant, at any time from May 31, 2011 through February 24, 2012, the date prior to the expiration of the statute of limitations, and sought consolidation in lieu of intervention.