CPLR § 1001 Necessary joinder of parties
Fagan v Nowitz, 2009 NY Slip Op 06660 (App. Div., 2nd, 2009)
By decision and order of this Court dated February 27, 2007, the matter
was remitted to the Supreme Court, Queens County, to hear and report on
whether or not it was appropriate to proceed in the absence of the
remainderpersons or beneficiaries, whether or not they can or should be
joined, and what is the appropriate remedy in the event that they
cannot be joined under CPLR 1001(b), and the appeal was held in
abeyance in the interim (see Nowitz v Nowitz, 37 AD3d 788).
The Supreme Court has now filed its report, and the parties have filed
supplemental appendices and briefs. Justices Mastro, Dillon, and Miller
have been substituted for former Justices Goldstein, Lifson, and Lunn (see 22 NYCRR 670.1[c]).
A court may excuse the failure to join a necessary party and allow
an action to proceed in the interest of justice upon consideration of
five factors enumerated in CPLR 1001(b): (1) whether the petitioner has
another remedy if the action is dismissed for nonjoinder, (2) the
prejudice that may accrue from nonjoinder to the defendant or to the
nonjoined party, (3) whether and by whom prejudice might have been
avoided or may in the future be avoided, (4) the feasibility of a
protective provision, and (5) whether an effective judgment may be
rendered in the absence of the nonjoined party.
Here, as the defendant concedes, the first factor weighs in
favor of excusing the plaintiff's failure to join the entities, since
she has no other effective remedy. However, the Supreme Court
improvidently exercised its discretion in determining that the
remaining four factors also weighed in favor of the proceeding
continuing in the entities' absence. As to the second factor, the
entities will suffer great prejudice if the matter proceeds in their
absence and the trust at issue is rescinded, as it was in the judgment
appealed from. As to the third factor, the plaintiff easily could have
avoided the prejudice to the entities by having timely joined the
entities as defendants. Moreover, although the entities could have
avoided any prejudice by voluntarily intervening in the action, such a
fact is outweighed by the plaintiff's failure to set forth any
reasonable excuse for her failure to timely join them (see Matter of Red Hook/Gowanus Chamber of Commerce v New York City Bd. of Stds. & Appeals, 49 AD3d 749, 752; Matter of Solid Waste Servs., Inc. v New York City Dept. of Envtl. Protection, 29 AD3d 318,
319). As to the fourth factor, the Supreme Court allowed the matter to
proceed to trial in the absence of the entities, resulting in the
rescission of the trust. Thus, this factor also weighs against
proceeding in the entities' absence, as under such circumstances, no
protective provision is feasible since recision of the trust directly
affects the entities' economic interests. Finally, the fifth factor
also weighs against proceeding in the entities' absence, as it is
questionable whether an effective judgment may be rendered without
their participation in the action.
Accordingly, considering each of the five factors enumerated in
CPLR 1001(b), and given our conclusion that the entities are
indispensable parties (see Nowitz v Nowitz, 37 AD3d 788), and in light of the fact that the applicable statute of limitations has expired (see CPLR 213), the action must be dismissed (see Matter of Red Hook/Gowanus Chamber of Commerce v New York City Bd. of Stds. and Appeals, 49 AD3d 749, 752; Nixon v Barrow, 239 AD2d 326).
The bold is mine.