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ALTHOUGH DEFENDANT NEVER ANSWERED THE COMPLAINT, HE APPEARED BY MAKING A MOTION TO DISMISS AND PARTICIPATED IN THE LITIGATION, THEREFORE DEFENDANT’S MOTION TO VACATE THE DEFAULT SHOULD HAVE BEEN GRANTED; DISMISSAL OF THE ACTION FOR FAILURE TO INCLUDE A NECESSARY PARTY OR THE FAILURE TO JOIN OR SUBSTITUTE A PARTY WAS NOT WARRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate the default should have been granted. Although defendant did not submit an answer, he did move to dismiss the complaint, which extended his time to answer, and thereafter participated in the litigation. Supreme Court properly denied defendant’s motion to dismiss on the ground a necessary party was not included in the suit, and on the ground a party should have been substituted or joined:

We disagree with the Supreme Court’s determination to deny that branch of the defendant’s motion which was to vacate his default in answering the complaint. “CPLR 320(a) provides that a defendant may appear in an action in one of three ways: (1) by serving an answer, (2) by serving a notice of appearance, or (3) making a motion which has the effect of extending the time to answer” … . Here, the defendant appeared in the action in May 2008, when he, among others, moved pursuant to CPLR 3211(a) to dismiss the complaint, which extended his time to serve an answer (see CPLR 320[a]; 3211[f]). Although the defendant did not serve an answer to the complaint following the denial of his motion, the record demonstrates that the defendant actively participated in the litigation during the ensuing years and that the plaintiffs never moved for leave to enter a default judgment against him. …

“CPLR 1001(a) provides that ‘[p]ersons . . . who might be inequitably affected by a judgment in the action’ are necessary parties whose joinder is required” … . “‘When a person who should be joined under [CPLR 1001(a)] has not been made a party and is subject to the jurisdiction of the court, the court shall order him summoned'”…. . However, “[u]pon any transfer of interest, the action may be continued by or against the original parties unless the court directs the person to whom the interest is transferred to be substituted or joined in the action” (CPLR 1018). “The determination to substitute or join a party pursuant to CPLR 1018 is within the discretion of the trial court” … . Contrary to the defendant’s contention, the Supreme Court did not improvidently exercise its discretion in permitting the plaintiffs to continue this action against the original defendants, despite any alleged changes to the composition of the purported board of trustees … over the course of this 16-year litigation, in order to avoid any further unnecessary delay … . Kelley v Garuda, 2020 NY Slip Op 07180, Second Dept 12-2-20

 

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