Upon the foregoing papers, in this dissolution proceeding by petitioner Agostino Oliveri (Agostino) against respondents Carmelo Re (Carmelo) and 1665 63rd Street Realty Corp., Maria S. Re (Maria) moves, by order to show cause, for an order allowing her to intervene in this proceeding, pursuant to CPLR 1012 (a) (3), as a party intervenor. Carmelo and 1665 63rd Street Realty Corp. move, by order to show cause, for an order: (1) pursuant to CPLR 3025 (b), granting them leave to amend their opposition to the petition in this proceeding, (2) consolidating this proceeding with an action entitled Oliveri v 1665 63rd Street Realty Corp. (Sup Ct, Kings County, index No. 21737/11) (the Sicilian action), and (3) staying this court's May 13, 2011 order insofar as it relates to the auction of real property located at 1653 63rd Street and 1655 63rd Street, in Brooklyn New York (collectively, the 63rd Street properties), and the dissolution of the corporate respondent 1665 63rd Street Realty Corp., pending a full and complete accounting of 1665 63rd Street Realty Corp. and the 63rd Street properties and the court's determination of this motion and Maria's motion to intervene.

1665 63rd Street Realty Corp was a domestic corporation organized and existing under the laws of New York, with its office located at 1662 63rd Street, in Brooklyn, New York, which is also where Agostino resides. Agostino was the president of 1665 63rd Street Realty Corp. and Agostino's son-in-law, Carmelo, was the vice-president of 1665 63rd Street Realty Corp., and each of them were 50% shareholders of the outstanding shares entitled to vote in an election of 1665 63rd Street Realty Corp.'s directors. 1665 63rd Street Realty Corp.'s certificate of incorporation, filed in August 1991, reflects that it was formed "to own, operate, manage, acquire and deal in property, real and personal, which may be necessary to the conduct of the business." 1665 63rd Street Realty Corp. is the owner of the 63rd Street properties.

On August 15, 2003, a lease was entered into between 1665 63rd Street Realty Corp, as landlord, and Sicilian Building Materials, Inc. (Sicilian), as tenant, whereby Sicilian was to lease the 63rd Street properties for a term to commence on August 15, 2003 and to end on December 31, 2015. Carmelo is the president of Sicilian and, although he is listed as being a shareholder of Sicilian on the lease, he claims that Maria is its sole shareholder. Maria, who is Agostino's daughter and Carmelo's wife, is the vice-president and the 100% shareholder of Sicilian. The rider to the lease provided that Sicilian was required to pay monthly rent, pursuant to a rental schedule. The amount of monthly rent commencing on August 1, 2003, was for $3,500, and this sum increased annually. The monthly rent for the period from August 1, 2009 to July 31, 2010 was for the sum of $4,557.90, the monthly rent for the period from August 1, 2010 to July 31, 2011 was for the sum of $4,763.01, and the monthly rent for the period from August 1, 2011 to July 31, 2012 was for the sum of $4,977.34. Pursuant to the terms of the rider to the lease, all rent checks were to be payable only to Agostino, individually. Sicilian operates a building materials company at the 63rd Street properties.

On December 28, 2010, Agostino filed a petition for the dissolution of 1665 63rd Street Realty Corp. pursuant to Business Corporation Law 1104 (a) (1), (2), and (3). The petition alleged that Sicilian, which was under Carmelo's control and direction, failed and refused to pay rent to 1665 63rd Street Realty Corp., which was depleting 1665 63rd Street Realty Corp.'s assets and causing waste. The petition further alleged that Carmelo had made false and slanderous claims against Agostino, that they no longer spoke to each other, that the dispute and controversy between Carmelo and Agostino involved other family members and extended into the operation and ownership of 1665 63rd Street Realty Corp., and that the acrimony between Carmelo and Agostino produced an irreconcilable impasse as to the operation and management as to the affairs of 1665 63rd Street and caused the cessation of the election and action of its officers and directors. The petition also alleged that there was a waste of corporate assets and dilution of such assets by reason of Carmelo's refusal to have his corporation, Sicilian, pay rent and maintain and take care of the 63rd Street properties owned by 1665 63rd Street Realty Corp. [*3]

The petition sought the dissolution of 1665 63rd Street Realty Corp., pursuant to Business Corporation Law § 1104 (a) (3), based on the ground that there was "internal dissension and two or more factions of shareholders [we]re so divided that dissolution would be beneficial to the shareholders." It also sought dissolution of 1665 63rd Street Realty Corp., pursuant to Business Corporation Law § 1104 (a) (1) and (2), respectively, based on the grounds that "the directors [we]re so divided respecting the management of the corporation's affairs that the votes required for action by the board c[ould] not be obtained," and that "the shareholders [we]re so divided that the votes required for the election of directors c[ould] not be obtained" and noting they had failed to elect directors and had not had an annual meeting in years.

Along with the petition, Agostino moved, by order to show cause, for an order dissolving 1665 63rd Street Realty Corp., appointing a receiver for 1665 63rd Street Realty Corp. pursuant to CPLR 6401 (a), and requiring Carmelo and 1665 63rd Street Realty Corp. to pay his reasonable attorneys' fees. Carmelo and 1665 63rd Street Realty Corp. appeared by their then counsel, Michael J. Petersen, Esq. In an affirmation in opposition to the petition, dated April 11, 2011, Mr. Petersen, Esq. specifically stated that Carmelo had no opposition to the application by Agostino for the dissolution of 1665 63rd Street Realty Corp. He only requested that since Agostino was collecting the rents for the 63rd Street properties, and, upon information and belief, had been retaining those rents for his own sole use and purpose without rendering an accounting to Carmelo, as a shareholder of 1665 63rd Street Realty Corp., Agostino should be required to account for all rents, profits, and income, as well as for all appropriate expenses and, upon such accounting, reconcile any monies owed to either Carmelo or 1665 63rd Street Realty Corp. He also opposed Agostino's petition to the extent that it sought the recovery of his attorneys' fees.

By an order dated May 13, 2011, the court granted Agostino's petition to dissolve 1665 63rd Street Realty Corp. and related relief, and directed that the 63rd Street properties be sold at auction. The May 13, 2011 order further directed Agostino to submit a long form order on notice, with a provision for an accounting and stated that this matter would not be marked off the calendar until the completion of the accounting.

On September 26, 2011, Agostino filed the Sicilian action against 1665 63rd Street Realty Corp. and Sicilian. Agostino's complaint in the Sicilian action alleged that Sicilian failed to make rental payments to him due under the lease beginning on June 2010 and thereafter, and, in the event that Sicilian made those payments directly to 1665 63rd Street Realty Corp., 1665 63rd Street Realty Corp. failed and refused to remit those payments to him. Agostino, in the Sicilian action, sought to recover the unpaid rent.

1665 63rd Street Realty Corp. and Sicilian, by their then attorney, Mr. Petersen, Esq., served an answer, which interposed counterclaims. The counterclaims alleged that in or about August 2003, Agostino entered into a verbal agreement with Maria and Carmelo, which provided that if they would allow the rent to be paid by Sicilian for the 63rd Street properties to be paid directly to Agostino instead of to 1665 63rd Street Realty [*4]Corp., Agostino would give the 63rd Street properties to Maria and Carmelo. The counterclaims further alleged that thereafter, Sicilian made payments directly for the rents to Agostino, and that Agostino failed and refused to transfer title to the 63rd Street properties to either Maria or Carmelo as promised and, therefore, violated and breached his agreement to do so. The counterclaims also alleged that Agostino failed to use any of the rental income received by him from Sicilian for the maintenance and upkeep of the 63rd Street properties which are in substantial disrepair and unusable for their intended purpose. The counterclaims asserted that as a result of the alleged breach of contract by Agostino in both failing to maintain the 63rd Street properties and in violating his alleged contract with Maria and Carmelo to transfer title to the 63rd Street properties to them, Sicilian began making its rent payment for the 63rd Street properties directly to 1665 63rd Street Realty Corp. so that proper maintenance and upkeep of the 63rd Street properties could be performed and also to reimburse Carmelo, as a 50% shareholder of 1665 63rd Street Realty Corp., for the rental income that he had not received since August 2003.

The answer in the Sicilian action referred to the present dissolution proceeding and explicitly conceded that this dissolution proceeding was resolved by the May 13, 2011 order, which granted Agostino's request for dissolution of 1665 63rd Street Realty Corp., and directed Agostino to account for the rent received by Agostino from August 2003 to the time of that order. It stated, however, that Agostino failed to account for the rents pursuant to the May 13, 2011 order. The answer, in its counterclaims, also alleged that the Sicilian action was barred by the doctrines of collateral estoppel and res judicata since the matter of the rent to be paid to Agostino was resolved in the May 13, 2011 order by requiring an accounting of rents.

On April 3, 2012, Agostino moved, in the Sicilian action, for an order granting him summary judgment in his favor and dismissing Carmelo and 1665 63rd Street Realty Corp.'s affirmative defenses and counterclaims. By an order dated July 19, 2012, Justice Johnny Lee Baynes granted Agostino's motion, and awarded him judgment in the amount of $117,678.09, covering the rental period from June 2010 through July 31, 2012.

An amended order, dated May 17, 2012 and filed on May 24, 2012, in this dissolution proceeding set forth that the motion by Agostino was granted insofar as it was ordered, adjudged, and decreed that Agostino's request for the dissolution of 1665 63rd Street Realty Corp. was granted, the 63rd Street properties were to be sold at auction, that Steven Cohn, Esq. was appointed as the referee for the purpose of conducting a judicial sale and making an assessment of each parties' interest in and to the 63rd Street properties, that the referee would sell the 63rd Street properties at auction, that this matter would be referred to Solomon & Sims to conduct a complete accounting of the 63rd Street properties, and that this matter shall not be marked off the calendar until completion of the accounting. A copy of this order with notice of entry was served upon Carmelo and 1665 63rd Street Realty Corp.'s attorney and filed on June 19, 2012. By a letter dated June 14, 2012, Steven Cohn advised the court that he was unable to accept the appointment as [*5]the referee due to a potential conflict of interest. By order dated September 28, 2012, the court amended the May 17, 2012 order to reflect that Harvey Greenberg, Esq. was appointed as the referee in place of Steven Cohn, Esq.

On November 19, 2012, Maria filed her instant motion to intervene in this proceeding. On November 29, 2012, Harvey Greenberg, Esq. filed a notice of appearance as the referee in this proceeding. By a notice of substitution of counsel dated February 17, 2013 (following Maria's filing of her motion), Carmelo, 1665 63rd Street Realty Corp., and Maria substituted the Internicola Law Firm, P.C. in the place of Michael J. Petersen, Esq. as their counsel of record. No notice of appeal was ever filed with respect to this court's May 13, 2011 order or any subsequent order in this dissolution proceeding. On April 12, 2013, Sicilian and 1665 63rd Street Realty Corp. substituted the Internicola Law Firm, P.C. in the place of Michael J. Petersen, Esq. as their counsel of record in the Sicilian action

On April 19, 2013, Sicilian and 1665 63rd Street Realty Corp filed a notice of appeal from Justice Baynes' July 19, 2012 order. The notice of appeal, in its description of the appeal, stated that in granting Agostino's motion for summary judgment in his favor and dismissing their affirmative defenses and counterclaims, this order decided the claims, rights, and interests of non-parties, Carmelo and Maria, individually, as to certain real properties and business agreements, and that issues of fact precluded the relief granted. The notice of appeal further specified that the issues proposed to be raised on appeal are whether Maria and Carmelo were necessary parties to the Sicilian action, whether the Supreme Court had personal jurisdiction over Maria and Carmelo and could have adjudicated a claim related to and involving these non-parties, and whether the Supreme Court had the right to dismiss the counterclaims made of behalf of non-parties Maria and Carmelo concerning the real property and business agreements. On May 2, 2013, Carmelo and 1665 63rd Street Realty Corp. filed their instant motion.

In support of her motion to intervene in this dissolution proceeding, Maria asserts that Sicilian is the lessee of the 63rd Street properties, and that Agostino, by his petition in this dissolution proceeding, seeks to have the 63rd Street properties sold and the proceeds distributed between him and Carmelo. Maria states that she is seeking to intervene in this proceeding in order to protect her interest in the 63rd Street properties owned by Sicilian which the court, by its May 13, 2011 order, directed shall be sold at public auction. She claims that her interest derives from an oral promise made by Agostino that in consideration of Sicilian paying the rental income for the 63rd Street properties to him individually, he would later transfer to her his interest in the 63rd Street properties. She [*6]claims that since August 1, 2003, Agostino has received in excess of $450,000 in rental payments. Maria has submitted a proposed "intervenor complaint" seeking to compel specific performance of Agostino's alleged promise to convey his Corporate interest in the 63rd Street properties to her. She seeks to set aside and vacate the May 13, 2011 order, and her proposed complaint demands that Agostino deliver his interest in 1665 63rd Street Realty Corp. to her and/or to deliver a deed to the 63rd Street properties to her.

CPLR 1012 (a) (3) provides that "[u]pon timely motion, any person shall be permitted to intervene in any action . . . when the action involves the disposition or distribution of, or the title or a claim for damages for injury to, property and the person may be affected adversely by the judgment." A significant factor in determining whether to grant or deny intervention is the extent of the time lag between the motion and the intervenor's acquisition of knowledge of the circumstances that make intervention appropriate. Here, Maria was well aware of this dissolution proceeding from its inception. Indeed, the May 13, 2011 order was implicitly consented to by Maria who was present at, and participated in the court conference held on that date. Furthermore, Maria inexplicably waited until November 19, 2012, over a year and a half after the May 13, 2011 order before moving for leave to intervene. Maria's motion, therefore, cannot be considered timely (Carnrike v Youngs, 70 AD3d 1146, 1147 [3d Dept 2010]; Matter of Arcelormittal Lackawanna LLC v City of Lackawanna, 66 AD3d 1365, 1365-1366 [4th Dept 2009], lv denied 68 AD3d 1825 [2009], lv dismissed 14 NY3d 822 [2010]; Rectory Realty Assoc. v Town of Southampton, 151 AD2d 737, 737-738 [2d Dept 1989]; Matter of Buffalo Mall v Assessor of Town of Clarence, 101 AD2d 701, 701 [4th Dept 1984]). Thus, Maria's motion for leave to intervene in this proceeding must be denied as untimely (see Breslin Realty Dev. Corp. v Shaw, 91 AD3d 804, 804-805 [2d Dept 2012]; Carnrike, 70 AD3d at 1147; Matter of Arcelormittal Lackawanna LLC, 66 AD3dat 1365-1366; Rectory Realty Assoc., 151 AD2d at 737-738; Matter of Buffalo Mall, 101 AD2d at 701).

Moreover, intervention will not be allowed where such intervention would needlessly delay the outcome of the matter to be determined, the rights of the prospective intervenor have already been adequately represented, and the party seeking to intervene has no real present interest in the properties that are the subject of the dispute (see Osman v Sternberg, 168 AD2d 490, 490 [2d Dept 1990]). Here, Maria holds no shares in 1665 63rd Street Realty Corp, and has no interest in the dissolution of it. Therefore, Maria does not have the necessary standing to intervene in this dissolution proceeding (see Business Corporation Law § 1104). To allow Maria to intervene would confuse the issues and would not result in any benefit to 1665 63rd Street Realty Corp., and would only serve to inordinately and prejudicially delay the sale of the 63rd Street properties and the conclusion of this matter.

Moreover, Maria has no meritorious claim with respect to the 63rd Street properties, and, thus, there is no basis for her to intervene in this dissolution proceeding. Maria's claim of an alleged oral agreement by Agostino to transfer the 63rd Street [*7]properties to her, at some point in the future, is barred by the Statute of Frauds since there was no deed or conveyance in writing regarding this alleged proposed conveyance (see Jones v James, 37 AD3d 543 [2d Dept 2007]).

The Statute of Frauds provides that "[a]n . . . interest in real property . . . cannot be created, granted, assigned, surrendered or declared, unless . . . by a deed or conveyance in writing, subscribed by the person creating, granting, assigning, surrendering or declaring the same" (General Obligations Law § 5-703 [1]). The Statute of Frauds further provides that a contract for the sale of real property is void unless memorialized in a writing subscribed by the party to be charged (see General Obligations Law § 5-703 [2]).

Maria, however, relies upon General Obligations Law § 5-703 (4), which provides that "[n]othing contained in this section abridges the powers of courts of equity to compel the specific performance of agreements in cases of part performance." She argues that there was part performance of the alleged oral agreement by Agostino to convey the 63rd Street properties to her by the alleged rental payments by Sicilian of in excess of $450,000 directly to Agostino. She argues that these payments constitute sufficient part performance to remove the alleged oral agreement from the operation of the Statute of Frauds.

Maria's argument that the alleged oral agreement may be enforced under General Obligations Law § 5-703 (4), based on Sicilian's partial performance, must be rejected. "The doctrine of part performance may be invoked only if plaintiff's actions can be characterized as unequivocally referable' to the agreement alleged" (Anostario v Vicinanzo, 59 NY2d 662 [1983]). "Unequivocally referable" conduct "is conduct which is inconsistent with any other explanation'" (745 Nostrand Retail Ltd. v 745 Jeffco Corp., 50 AD3d 768, 769 [2d Dept 2008], quoting Richardson & Lucas, Inc. v New York Athletic Club of City of NY, 304 AD2d 462, 463 [1st Dept 2003]). "It is not sufficient . . . that the oral agreement gives significance to [the complaining party's] actions" (Anostario, 59 NY2d at 664). "Rather, the actions alone must be unintelligible or at least extraordinary', explainable only with reference to the oral agreement" (id.; see also Burns v McCormick, 233 NY 230, 232 [1922]; Cooper v Schube, 86 AD2d 62, 67-68 [1st Dept 1982], affd 57 NY2d 1016 [1982]).

Here, the payments of rent by Sicilian to Agostino for leasing the 63rd Street properties are not "unequivocally referable" to the alleged unwritten agreement by Agostino to convey his interest in the 63rd Street properties to Maria. Rather, such payments are equivocal, as they could be reasonably explained by other possibilities (see Anostario, 59 NY2d at 664; 151 Mulberry St. Corp. v Italian Am. Museum, 102 AD3d 412, 413 [1st Dept 2013]; Singh v Kur, 64 AD3d 697, 698 [2d Dept 2009]; 745 Nostrand Retail Ltd., 50 AD3d at 769; Carey & Assoc. v Ernst, 27 AD3d 261, 264 [1st Dept 2006]; Lebowitz v Mingus, 100 AD2d 816, 817 [1st Dept 1984], appeal dismissed 63 NY2d 675 [1984]). Thus, such rental payments do not remove this alleged oral agreement from the operation of the Statute of Frauds under the doctrine of part [*8]performance (see Anostario, 59 NY2d at 664; Hersh v Weg, 105 AD3d 539, 539 [1st Dept 2013]; Korff v Pica Graphics, 121 AD2d 511, 512 [2d Dept 1986]).Additionally, the alleged oral agreement claimed by Maria would fail for indefiniteness (see Joseph Martin, Jr., Delicatessen v Schumacher, 52 NY2d 105, 109-110 [1981]; 2004 McDonald Ave. Realty, LLC v 2004 McDonald Ave. Corp., 50 AD3d 1021, 1021 [2d Dept 2008]; Allied Sheet Metal Works v Kerby Saunders, Inc., 206 AD2d 166, 171 [1st Dept 1994]; Mur-Mil Caterers v Werner, 166 AD2d 565, 566 [2d Dept 1990]). Maria does not set forth the date of this alleged promise or the date on which such transfer would take place. She also does not state the total sum required to be paid prior to such alleged transfer of the 63rd Street properties to her nor does she state that all required rental payments were made. While the lease provided for rental payments to be made by Sicilian directly to Agostino, there is no mention of any alleged agreement to transfer the 63rd Street properties to Maria in the lease, and it contains no terms regarding a sale of the 63rd Street properties, the purchase price for the 63rd Street properties, or when such sale would take effect.

In addition, Agostino could not have made such a promise since he did not own the 63rd Street properties in his individual capacity, but, rather, 1665 63rd Street Realty Corp. was the owner of the 63rd Street properties. Furthermore, as evidenced by the necessity for Justice Baynes' July 19, 2012 order, Sicilian did not even make the rental payments required under the lease, in accordance with the alleged oral agreement.

Moreover, as discussed above, the same claim now sought to be raised by Maria was previously raised as a counterclaim in the Sicilian action and Justice Baynes, in his July 19, 2012 order, granted summary judgment dismissing this counterclaim, thereby rejecting this claim, as conceded by 1665 63rd Street Realty Corp. and Sicilian in their notice of appeal from that order. " Under the doctrine of res judicata, a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding'" (Douglas Elliman, LLC v Bergere, 98 AD3d 642, 642-643 [2d Dept 2012], quoting Abraham v Hermitage Ins. Co., 47 AD3d 855, 855 [2d Dept 2008]; see also Matter of Hunter, 4 NY3d 260, 269 [2005]; O'Brien v City of Syracuse, 54 NY2d 353, 357 [1981]; Pondview Corp. v Blatt, 95 AD3d 980, 980 [2d Dept 2012]; Matter of ADC Contr. & Constr., Inc. v Town of Southampton, 50 AD3d 1025, 1026 [2d Dept 2008]). "Res judicata thus operates to preclude the renewal of issues actually litigated and resolved in a prior proceeding as well as claims for different relief which arise out of the same factual grouping or transaction and which should have or could have been resolved in the prior proceeding'" (Douglas Elliman, LLC, 98 AD3d at 643, quoting Union St. Tower, LLC v Richmond, 84 AD3d 784, 785 [2d Dept 2011], lv dismissed 18 NY3d 946 [2012]; see also Luscher v Arrua, 21 AD3d 1005, 1006-1007 [2d Dept 2005]).

"[U]nder New York's transactional analysis approach to res judicata, once a claim [*9]is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy'" (Matter of Hunter, 4 NY3d at 269, quoting O'Brien, 54 NY2d at 357; see also Matter of Reilly v Reid, 45 NY2d 24, 29-30 [1978]). " Res judicata is designed to provide finality in the resolution of disputes,' recognizing that [c]onsiderations of judicial economy as well as fairness to the parties mandate, at some point, an end to litigation'" (Matter of Hunter, 4 NY3d at 269-270, quoting Matter of Reilly, 45 NY2d at 28).

Moreover, "[t]he doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same" (Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]; see also Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349 [1999]). "[C]ollateral estoppel allows the determination of an issue of fact or law raised in a subsequent action by reference to a previous judgment on a different cause of action in which the same issue was necessarily raised and decided'" (Ryan, 62 NY2d at 500, quoting Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 485 [1979]). "What is controlling is the identity of the issue which has necessarily been decided in the prior action or proceeding" (Ryan, 62 NY2d at 500).

The doctrine of collateral estoppel "applies if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier action" (Parker, 93 NY2d at 349). Thus, "[t]he two requirements for its application are: first, the identical issue necessarily must have been decided in the prior action and be decisive in the present action, and second, the party to be precluded must have had a full and fair opportunity to contest the prior determination" (Matter of Abady, 22 AD3d 71, 81 [1st Dept 2005]; see also Kaufman v Eli Lilly & Co., 65 NY2d 449, 455 [1985]; Schwartz v Public Adm'r of County of Bronx, 24 NY2d 65, 69 [1969]).

Here, the July 19, 2012 order disposed of the claim, which Maria now seeks to assert, on the merits. Thus, Maria's claim is barred by the doctrines of res judicata and collateral estoppel. Consequently, Maria's motion for leave to intervene in this dissolution proceeding must be denied since it is not only untimely, but also seeks to assert claims which are wholly lacking in merit as they are barred by the Statute of Frauds and the doctrines of res judicata and collateral estoppel.

Carmelo and 1665 63rd Street Realty Corp. seek leave to amend their opposition and answer to the petition to assert counterclaims and affirmative defenses that there was an oral agreement that Agostino would transfer his 50% interest in 1665 63rd Street Realty Corp. and, thereby, the 63rd Street properties to Maria if Carmelo and Maria agreed that [*10]Sicilian would pay the rental income for leasing the 63rd Street properties directly to Agostino.

Although pursuant to CPLR 3025 (b), leave to amend a pleading should generally be freely granted absent prejudice to the opposing party (see CPLR 3025 [b]; Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]; Charleson v City of Long Beach, 297 AD2d 777, 778 [2d Dept 2002]), such leave should be denied where the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit (see Mortgage Elec. Registration Sys., Inc. v Reid, 85 AD3d 880, 881 [2d Dept 2011]; Scofield v DeGroodt, 54 AD3d 1017, 1018 [2d Dept 2008]; Lucido v Mancuso, 49 AD3d 220, 229 [2d Dept 2008], appeal withdrawn 12 NY3d 813 [2009]; Buckholz v Maple Garden Apts., LLC, 38 AD3d 584, 585 [2d Dept 2007]; Morton v Brookhaven Mem. Hosp., 32 AD3d 381, 381 [2d Dept 2006]; Ruddock v Boland Rentals, 5 AD3d 368, 370 [2d Dept 2004]; AYW Networks v Teleport Communications Group, 309 AD2d 724, 725 [2d Dept 2003]; Leszczynski v Kelly & McGlynn, 281 AD2d 519, 520 [2d Dept 2001]; McKiernan v McKiernan, 207 AD2d 825, 825 [2d Dept 1994]). Here, the proposed amendments are insufficient as a matter of law since (as set forth above) the alleged oral agreement violates the Statute of Frauds and is also barred by the doctrines of res judicata and collateral estoppel.

Moreover, " "[l]ateness in making a motion to amend, coupled with the absence of a satisfactory excuse for the delay and prejudice to the opposing party, justifies denial of such a motion"'" (Matter of Senior Care Servs., Inc. v New York State Dept. of Health, 46 AD3d 962, 964 [3d Dept 2007], quoting Sadler v Town of Hurley, 304 AD2d 930, 931 [3d Dept 2003], quoting Thibeault v Palma, 266 AD2d 616, 617 [3d Dept 1999]; see also Kimso Apts., LLC v Gandhi, 104 AD3d 742, 743-744 [2d Dept 2013]; Comsewogue Union Free School Dist. v Allied-Trent Roofing Sys., Inc., 15 AD3d 523, 525 [2d Dept 2005]; Sewkarran v DeBellis, 11 AD3d 445, 445-446 [2d Dept 2004]). Here, Carmelo does not offer any excuse for the delay in seeking such amendment. Carmelo never raised the claim that Agostino promised to transfer the 63rd Street properties in this dissolution proceeding prior to the court's May 13, 2011 order granting dissolution of 1665 63rd Street Realty Corp. Significantly, the May 13, 2011 order was based upon the express consent of Carmelo, and Carmelo does not deny that he was served with the May 13, 2011 order and thereafter with the long form order, and was well aware of such orders and the granting of the dissolution of 1665 63rd Street Realty Corp. at that time.

Since permitting Carmelo to amend his opposition to untimely assert a patently meritless claim would severely prejudice Agostino, Carmelo and 1665 63rd Street Realty Corp.'s motion, insofar as it seeks leave to amend such opposition and answer to the petition, must be denied.

Consolidation

Carmelo and 1665 63rd Street Realty Corp. seek to consolidate this dissolution proceeding with the Sicilian action. Pursuant to CPLR 602 (a), "[w]hen actions involving [*11]a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay." Carmelo and 1665 63rd Street Realty Corp. argue that this dissolution proceeding and the Sicilian action contain similar issues of law and fact in that they involve the same alleged lease agreement and the same alleged oral agreement regarding the transfer of the 63rd Street properties.

Carmelo's request to consolidate the already concluded Sicilian action with this dissolution proceeding is wholly without merit and would be highly prejudicial at this late stage of the matter since the Sicilian action has been disposed of by Justice Bayne's July 19, 2012 order and dissolution of 1665 63rd Street Realty Corp. has already been granted by the May 13, 2011 order in this proceeding and this proceeding has thereafter advanced to the point of having a referee appointed and notice of the sale at auction of the 63rd Street properties is to be published.

Stay

Carmelo and 1665 63rd Street Realty Corp. also argue that they should be allowed to stay the auction and the dissolution in the May 13, 2011 order, pending a full and complete accounting and the determination of their motion and Maria's motion. However, as previously discussed, 1665 63rd Street Realty Corp. has already been dissolved pursuant to the court's May 13, 2011 order and an accounting has been ordered. There is no basis to stay the auction of the 63rd Street properties, which would only cause unnecessary and unwarranted delay to the prejudice of Agostino's rights. Moreover, since Carmelo and 1665 63rd Street Realty Corp.'s motion and Maria's motion have now been decided, this branch of the motion is rendered moot.

Accordingly, Maria's motion and Carmelo and 1665 63rd Street Realty Corp.'s motion are denied in their entireties.

This constitutes the decision and order of the court.

E N T E R,

J. S. C.