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WHEN IT IS ARGUED A NECESSARY PARTY WAS NOT SUED, SUMMARY JUDGMENT SHOULD NOT BE GRANTED ON THAT GROUND; RATHER THE PROCEDURE DESCRIBED IN CPLR 1001 (B) SHOULD BE FOLLOWED (SECOND DEPT).

The Second Department noted that a property owner, R.E. Dowling, was a necessary party in this dispute about the existence of easements and that the denial of summary judgment on that ground was proper pursuant to CPLR 1001 (b). The matter was remitted to determine whether the party can be summoned or whether the action can proceed in that party’s absence:

Although the record supports [the]contention that R.E. Dowling is a necessary party, the Supreme Court properly denied that branch of [the] motion which was for summary judgment dismissing the complaint for failure to join R.E. Dowling. Rather than dismissing the action, CPLR 1001(b) requires the court to order the necessary party or parties summoned, where they are subject to the court’s jurisdiction, and “[i]f 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”… . Thus, the matter must be remitted to the Supreme Court, Suffolk County, to determine whether R.E. Dowling, or its successor in interest as owner of the eastern half of Windmill Lane, can be summoned and, if not, whether the action may nevertheless proceed in that party’s absence.  Sacasa v David Trust, 2021 NY Slip Op 04772, Second Dept 8-25-21

 

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