Miller v Wendy Joan St. Wecker Trust U/A Aug. 28, 1997, 173 AD3d 1007 [2d Dept. 2019]
Necessary parties are persons “who might be inequitably affected by a judgment in the action” and must be made plaintiffs or defendants (CPLR 1001 [a]). CPLR 1001 (b) requires the court to order such persons summoned, where they are subject to the court’s jurisdiction. If jurisdiction over such necessary parties can be obtained only by their consent or appearance, the court is to determine, in accordance with CPLR 1001 (b), whether justice requires that the action proceed in their absence (see CPLR 1001 [b]). The nonjoinder of necessary parties may be raised at any stage of the proceedings, by any party or by the court on its own motion, including for the first time on appeal (see City of New York v Long Is. Airports Limousine Serv. Corp., 48 NY2d 469, 475 ; Matter of Lezette v Board of Educ., Hudson City School Dist., 35 NY2d 272, 282 ; Censi v Cove Landings, Inc., 65 AD3d 1066, 1067-1068 ; Migliore v Manzo, 28 AD3d 620, 621 ; Vincent C. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C1003:1; see also CPLR 1003).
Here, the record indicates the possible existence of necessary parties who have not been joined, namely, the other residents of the subdivision who may possess a tenancy in common in Clock Tower Lane. Accordingly, we remit the matter to the Supreme Court, Nassau County, to hold a hearing to determine whether there are any necessary parties who should be joined in this action and, if so, to compel their joinder, subject to any affirmative defenses, and if joinder cannot be effectuated, to determine, pursuant to CPLR 1001 (b), whether the action should proceed in the absence of any necessary parties (see Censi v Cove Landings, Inc., 65 AD3d at 1068; De Ruscio v Jackson, 164 AD2d 684, 688 ).