CPLR § 1001 Necessary joinder of parties
Crummell v Avis Rent A Car Sys., Inc., 2009 NY Slip Op 04022 (App. Div., 2nd, 2009)
The Supreme Court erred in granting that branch of the defendant's
motion which was to dismiss the complaint for failure to state a cause
of action, pursuant to CPLR 3211(a)(7), due to the [*2]plaintiff's
failure to comply with Insurance Law § 3420(a)(2). That provision
governs the right of an injured party who is a stranger to an insurance
contract to maintain a direct action against the tortfeasor's insurer (see Lang v Hanover Ins. Co., 3 NY3d 350,
353-354). It does not apply where, as here, a signatory to a contract
seeks a declaration of his rights with respect to another contracting
party (see CPLR 3001; Lang v Hanover Ins. Co., 3 NY3d 350, 353).While the Supreme Court correctly concluded that Thomas Pinkerton is a necessary party to this action (see CPLR 1001[a]; cf. Bello v Employees Motor Corp., 240
AD2d 527), under the circumstances presented, the plaintiff should have
been given an opportunity to rectify his failure to join him (see Stevens v Eaton, 267 AD2d 450, 450-451).
The Supreme Court should not have considered, and we do not
consider, the defendant's remaining contention, because the defendant
improperly raised it for the first time in its reply papers in the
Supreme Court (see Luft v Luft, 52 AD3d 479, 480; Medugno v City of Glen Cove, 279 AD2d 510, 511-512).
Mayer's Cider Mill, Inc. v Preferred Mut. Ins. Co., 2009 NY Slip Op 04466 (App. Div., 4th, 2009)
Finally, we reject the contention of Preferred Mutual that the
manufacturer and distributor of the machine in question are necessary
parties to this action, pursuant to CPLR 1001 (a). The issue whether
Preferred Mutual must defend and indemnify plaintiff has no bearing on
any claim by Lansdowne against the manufacturer or the distributor, and
they thus are not affected, "inequitably" or otherwise, by this action (id.).
The bold is mine.
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