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INSTEAD OF DISMISSING THE COMPLAINT FOR FAILURE TO NAME A NECESSARY PARTY SUPREME COURT SHOULD HAVE ORDERED THE PARTY SUMMONED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that the motion to dismiss for failure to name a necessary party should not have been granted. Rather the court should have ordered the party summoned:

… [T]he Supreme Court should have denied that branch of [defendant’s] motion which was pursuant to CPLR 3211(a)(10) to dismiss the complaint insofar as asserted against her for failure to join the estate … as a defendant. “When a [necesssary party] has not been made a party and is subject to the jurisdiction of the court, the court shall order him summoned” (CPLR 1001[b]). Accordingly, we remit the matter … for the joinder of the administrator of the estate … and for further proceedings consistent herewith … . U.S. Bank Trust, N.A. v Gedeon, 2020 NY Slip Op 01660, Second Dept 3-11-20

 

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