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HERE THE ARGUMENT THAT NECESSARY PARTIES HAD NOT BEEN JOINED SHOULD NOT HAVE BEEN REJECTED; THE PROPER REMEDY IS TO SUMMON THE NECESSARY PARTIES, NOT DISMISSAL (SECOND DEPT).

The Second Department, reversing Supreme Court, noted that the proper remedy for the failure to include a necessary party is to summon the missing party, not dismiss the action:​

The nonjoinder of necessary parties may be raised at any stage of the proceedings, by any party or by the court on its own motion, including for the first time on appeal” … . “Necessary parties are defined as ‘[p]ersons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action'” … . “The rule serves judicial economy by preventing a multiplicity of suits. It also insures fairness to third parties who ought not to be prejudiced or embarrassed by judgments purporting to bind their rights or interest where they have had no opportunity to be heard” …. “Dismissal of an action or proceeding for nonjoinder of a necessary party is only a last resort” …. Therefore, “[w]hen a necessary party has not been made a party and is ‘subject to the jurisdiction’ of the court, the proper remedy is not dismissal of the complaint or the petition, but rather for the court to direct that the necessary party be summoned” … .

Supreme Court improperly rejected the respondents’ contention that the petitioners failed to join necessary parties. The petitioners sought to annul so much of the Village Board’s resolution …  as appointed Tucci to his position [with the Village Fire Department], and the court granted that request. Since Tucci was a person “who might be”—and in fact was—”inequitably affected by a judgment” in this proceeding (CPLR 1001[a]), he was a necessary party … . Similarly, as the petitioners sought relief that could result in a change to the leadership of the Fire Department, the Board of Fire Wardens was also a necessary party … .

… [D]ismissal of this proceeding is not the appropriate remedy for nonjoinder of Tucci and the Board of Fire Wardens … . Instead, “[u]nder these circumstances, the appropriate procedure is for the Supreme Court to determine whether [those parties] can be summoned and, if joinder cannot be effectuated, to determine whether the proceeding[ ] may nevertheless proceed in [their] absence, upon consideration of the factors set forth in CPLR 1001(b)” … . Matter of Riverside Hose Co., Inc. v Village of Tarrytown Vil. Bd., 2025 NY Slip Op 04793, Second Dept 8-27-25

Practice Point: Consult this decision for a definition of “necessary parties” within the meaning of CPLR 1001(b) and an explanation of the proper procedure for dealing with the failure to join a necessary party.

 

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