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THE BUILDER OF THE HOUSE WAS NOT A NECESSARY PARTY IN THIS ACTION AGAINST THE SELLER BY THE PURCHASER; EVEN IF THE BUILDER WERE A NECESSARY PARTY, THE COURT SHOULD HAVE SUMMONED THE BUILDER ITSELF PURSUANT TO CPLR 1001 (b) RATHER THAN DISMISSING THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the complaint should not have been dismissed for failure to join a necessary party because (1) defendant (Accent) was not a necessary party and (2) even if Accent were a necessary party, the court should have summoned Accent itself pursuant to CPLR 1001 (b). The action concerned alleged defects in a house plaintiffs had purchased from defendants and claimed fraud, negligence, deceptive practices, breach of implied warranty, and breach of contract . Accent had constructed the house:

CPLR 1001 “limit[s] the scope of indispensable parties to those cases and only those cases where the determination of the court will adversely affect the rights of nonparties” … . Here, the defendants failed to demonstrate that Accent ought to be a party if complete relief is to be accorded between the plaintiffs and the defendants (see CPLR 1001[a]), and also failed to demonstrate that Accent will be inequitably affected by a judgment in this action absent its joinder … . Accent has no connection to the plaintiffs’ cause of action for breach of contract, which alleges only that the defendants breached their contract with the plaintiffs. As for the balance of the plaintiffs’ claims, Accent is, at best, a joint tortfeasor, with the plaintiffs having the option to proceed against any or all joint tortfeasors … . Accordingly, we reverse the order insofar as appealed from and remit the matter to the Supreme Court, Nassau County, for a determination on the merits of the remaining branches of the defendants’ motion, and for further proceedings, if necessary, thereafter.

We note that, even if Accent was a necessary party, it appears to be subject to the jurisdiction of the court, and therefore, the Supreme Court should have “order[ed] [it] summoned,” rather than granting that branch of the defendants’ motion which was to dismiss the complaint for failure to join a necessary party (CPLR 1001[b] …). Blatt v Johar, 2019 NY Slip Op 07901, Second Dept 11-6-19

 

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