CPLR § 1001 Necessary Joinder

In an action to recover payment for professional nursing care
services, to set aside a conveyance of real property as fraudulent, and
to declare the subject deed null and void, nonparty Green Tree Credit,
LLC, f/k/a Conseco Finance Credit Corp., appeals from an order of the
Supreme Court, Kings County (Dabiri, J.), dated December 17, 2007,
which denied its motion, in effect, pursuant to CPLR 2221(a) and
1001(a) to vacate those portions of a prior order of the same court
dated December 5, 2006, granting that branch of the plaintiff's motion
which was for leave to amend the complaint to add a cause of action to
set aside a deed of real property to the defendant as fraudulent, and
amended a prior order and judgment (one paper) of the same court
(Ruchelsman, J.), dated September 12, 2005, to include a declaration
that the subject deed is null and void and a direction to the County
Clerk of Kings County to mark the records accordingly.

ORDERED that the order is reversed, on the law, with costs, the
nonparty-appellant's motion, in effect, pursuant to CPLR 2221(a) and
1001(a) is granted, and those provisions of the December 5, 2006, order
which granted that branch of the plaintiff's motion which was for leave
to amend the complaint and which amended the order and judgment dated
September 12, 2005, to include a declaration that the subject deed is
null and void and a direction to the County Clerk of Kings County to
mark the records accordingly are vacated, and that branch of the
plaintiff's motion which was for leave to amend the complaint is
denied.
[*2]

"It is a fundamental legal
principle that an individual may not be deprived of property without
due process of law, which requires that one be accorded notice and an
opportunity to be heard" (Friedman v Friedman, 125 AD2d 539,
541). Contrary to the plaintiff's contention and the determination of
the Supreme Court, the plaintiff was required to join the
nonparty-appellant, Green Tree Credit, LLC, f/k/a Conseco Finance
Credit Corp. (hereinafter Green Tree), the mortgagee of the subject
premises, as a necessary party in its cause of action to set aside the
conveyance of the subject premises as fraudulent, and to declare the
subject deed null and void (see CPLR 1001[a]; Ameriquest Mtge. Co. v Gaffney, 41 AD3d 750, 751; Losner v Cashline, L.P., 284 AD2d 433; Friedman v Friedman, 125 AD2d 539, 541; see e.g. Skiff-Murray v Murray, 17 AD3d 807).
Accordingly, the failure of the plaintiff to join Green Tree as a
defendant requires that the portions of the Supreme Court's resulting
order dated December 5, 2006, granting that branch of the plaintiff's
motion which was for leave to amend the complaint to add a cause of
action to set aside the conveyance of the subject premises as
fraudulent, and to declare the subject deed null and void, and amending
a prior order and judgment of the same court to include a declaration
that the subject deed is null and void and a direction to the County
Clerk of Kings County to mark the records accordingly be vacated, and
that that branch of the plaintiff's motion which was for leave to amend
the complaint be denied.