Upon the following papers numbered 1 toread on this motion for granting leave to intervene, dismissal and cancellation of the notice of pendency; Notice of Motion/Order to Show Cause and supporting papers 1 - 3; Notice of Cross Motion and supporting papers; Answering papers4-5; Reply papers6-7; Other; (and after hearing counsel in support and opposed to the motion) it is,

ORDEREDthat this motion (#002 ) by non-party "33 Yava St. Trust" for leave to intervene as of right and, upon the granting of that relief, an order deeming the proposed answer attached to the moving papers served and dismissing the amended complaint due to a purported lack of standing on the part of the plaintiff, together with cancellation of the notice of pendency, is considered under CPLR 1012(a)(3) and is denied.

This mortgage foreclosure action was commenced in November of 2009 against, among others, Lawrence L. Berardi, the obligor/mortgagor under the March 27, 2007 note and mortgage at issue herein. Due to an inability to locate the defendant mortgagor, Lawrence L. Berardi, the plaintiff moved for leave to serve a supplemental summons and amended complaint therein identifying the mortgagor as an unknown party and asserting claims against him, as such if he be living, and if he be dead then against his heirs at law, legatees devisees, personal representatives, successors and the like. The plaintiff further sought the appointment of a guardian ad litem/military attorney for the unknown mortgagor defendant. The motion was granted by order dated March 22, 2010 and the court appointed Lynn Poster-Zimmerman, Esq., as guardian ad litem.

On October 23, 2010, the missing defendant mortgagor, with a listed address at 3 Wilmont Turn, "Tanglewood Hills", New York 11727, allegedly conveyed his interest in the subject premises to a trust known as the "33 Yava St. Trust" [hereinafter, "Trust"]. The Trust bears the same name as the street address of the mortgaged premises which is situated in Port Jefferson Station, New York. The deed recites that the Trust has an address of 27 Whinstone Street, "Tanglewood Hills", New York 11727.

By the instant motion, the Trust first seeks leave to intervene in this action pursuant to CPLR 1012(a)(3) due to the conveyance of October 23, 2010 allegedly made by the mortgagor defendant [*2]in favor of the Trust. Further relief in the form of an order deeming as served the Trust's proposed answer to the amended complaint that is attached to the moving papers and dismissing this action pursuant to CPLR 3211 due to a purported lack of standing on the part of the plaintiff and cancellation of the notice pendency indexed against the mortgaged premises is demanded in the moving papers. The motion is supported by an affirmation of the movant's counsel; a copy of the deed of October 23, 2010 and the recording page issued by the Suffolk County Clerk on October 29, 2012, which recites that no transfer taxes were paid; a copy of a purported Schedule A of the Trust Indenture; a proposed answer verified by Vernon T. Willis, who states his capacity to be Trustee of the Trust; and, the amended complaint. The motion is opposed by plaintiff's counsel to which the movant's counsel replied by affirmation. For the reasons stated below, the motion is denied.

It is well established that intervention pursuant to either CPLR 1012 or CPLR 1013 requires a timely motion for such relief (see Deutsche Bank Natl. Trust Co. v Golding, 123 AD3d 757, 2014 WL 6911362 [2d Dept 2014]; U.S. Bank Natl. Ass'n v Bisono, 98 AD3d 608, 949 NYS2d 652 [2d Dept 2012]; JP Morgan Chase Bank, N.A. v Edelson, 90 AD3d 996, 934 NYS2d 847 [2d Dept 2011]; Rectory Realty Assoc. v Town of Southampton, 151 AD2d 737, 543 NYS2d 128 [2d Dept 1989]). Here, the movant Trust allegedly took title to the premises in October of 2010, at which time, a notice of pendency had been filed by the plaintiff and indexed by the County Clerk against the mortgaged premises, which notice of pendency has been continually renewed. In addition, the defendant mortgagor, who purportedly made such conveyance to the Trust, had already been adjudicated by this court to be an unknown party in an order dated March 17, 2010 that included the appointment of a guardian ad litem and military attorney for such defendant. Constructive notice of the claims of the plaintiff and of the existence of this action is thus imputable to the movant, Trust, which took no action until the interposition of this motion in December of 2014. Under these circumstances, the court finds that the instant motion is untimely.

The court further finds that the Trust failed to demonstrate its interest in the mortgaged premises. The requisite elements of an express trust are a designated beneficiary, a designated trustee, a clearly identifiable res and delivery of the res by the settlor to the duly named and qualified trustee with the intent of vesting legal title in the trust (see Orentreich v Prudential Ins. Co. of Am., 275 AD2d 685, 713 NYS2d 330 [1st Dept 2000]). Here, no copy of the Trust Indenture (other than a purported Schedule A) was submitted on the instant motion leaving it impossible to determine the existence of any of these elements. The Trust thus failed to establish the date of the Trust's creation, the identity of the trustee or trustees named in the trust indenture and those now acting as qualified trustees and the "res" or subject matter of the Trust and its transfer by the settlor into the trust corpus following the Trust's inception. In addition, the Trust failed to demonstrate that the identity of the named beneficiaries are persons other than the trustee or trustees so as to avoid a merger of the Trust's legal title, if any, into the beneficial interests of the beneficiaries, at inception or thereafter. The effect of any such merger would, by operation of law, render a trust null and void at its inception or work a termination of an originally valid trust immediately upon the merger of the interests (see 106 NY Jur2d Trusts § 617).

In addition, the court finds that no trustee appeared before the court on this motion, as the [*3]moving papers recite only that the Trust has appeared and is the entity seeking the relief demanded. Such an appearance appears to violate the rule that a trust may not sue or be sued in its own name, but instead, must act and appear only by its duly qualified trustees (see CPLR 1004).

Finally, the instant motion was not served upon the guardian ad litem/and military attorney appointed for the missing mortgagor defendant, who is a ward of this court. That such guardian is clearly entitled to be apprised of the whereabouts and activities of her ward subsequent to his adjudication as an unknown party is clear.

In view of the foregoing, the instant motion is in all respects denied.

Dated: February 6, 2015

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