Jennings v. Chase Home Finance, LLC

136 A.D.3d 444, 23 N.Y.S.3d 890

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 4, 2016
• Docket: 140 306342/10
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered March 19, 2015, which granted defendants-respondents’ motion to dismiss the complaint for failure to join a necessary party, unanimously affirmed, without costs.

Plaintiff, a feeholder of the residential property at issue, seeks, among other things, a declaratory judgment as to the rights of the parties with regard to a loan and a mortgage on the property. Third-party defendant Maryrose Mlayi, a feeholder and mortgagor of the property, is a necessary party to this action (see CPLR 1001 [a]; Guccione v Estate of Guccione, 84 AD3d 867, 870 [2d Dept 2011]). Since plaintiff never sought to have Mlayi added as a defendant, Supreme Court properly dismissed the action (see CPLR 1003; Telesford v Patterson, 27 AD3d 328, 330 [1st Dept 2006]). Mlayi, who is allegedly absent from the state, could have been served by publication, if necessary (see CPLR 314, 315; Contimortgage Corp. v Isler, 48 AD3d 732, 734 [2d Dept 2008]), and is therefore subject to Supreme Court’s jurisdiction. Accordingly, there is no basis for permitting the action to proceed without her (see CPLR 1001 [b]; Matter of East Bayside Homeowners Assn., Inc. v Chin, 12 AD3d 370, 371 [2d Dept 2004], lv denied 4 NY3d 704 [2005]).

Concur — Tom, J.P., Friedman, Sweeny, Acosta and Andrias, JJ.