Schmidt v. Schmidt

99 A.D.2d 775, 472 N.Y.S.2d 26, 1984 N.Y. App. Div. LEXIS 17158

Opinion

In an action for a divorce and ancillary relief, nonparties Anthony J. Piacentini, Andrew F. Chillemi and Catherine Chillemi appeal from so much of an order of the Supreme Court, Suffolk County (Geiler, J.), dated May 12, 1983, as stated that they were “joined to this action as necessary parties”. Order modified, by adding thereto a provision directing plaintiff to serve the appellants with a supplemental summons specifying the pleading which they must answer and by granting plaintiff leave to serve an amended complaint setting forth a cause of action against them. As so modified, order affirmed insofar as appealed from, without costs or disbursements. It is well settled that a court may, on its own motion, find that there is nonjoinder of necessary parties and that it has wide latitude in the addition of necessary parties (CPLR 1003; see Matter ofLezette v Board ofEduc., 35 NY2d 272). As alleged third-party transferees of marital property subject to a distribution dispute, appellants were properly determined to be necessary parties to this action (Deleno v Deleno, 61 AD2d 788, mot for lv to app den 45 NY2d 708). Jurisdiction over additional parties, however, is acquired only after a supplemental summons specifying the pleading which they must answer has been served upon them (CPLR 305, subd [a]; 1001, subd [b]). Special Term therefore erred to the extent that, in stating that appellants were joined as necessary parties, it failed to direct that they be served with such a supplemental summons. Additionally, as the complaint does not sufficiently advise appellants of plaintiff’s allegations concerning them, plaintiff is granted leave to serve an amended complaint setting forth a cause of action against them. Titone, J. P., Gibbons, Thompson and Boyers, JJ., concur.