Judge Kraus
http://nycourts.law.com/CourtDocumentViewer.asp?view=Document&docID=115264
IN THIS summary holdover proceeding, petitioner owner sought to recover possession of the subject apartment from respondent tenant alleging she breached her obligations under the proprietary lease. Respondent moved for dismissal based on petitioner’s failure to name Messer, her brother, and an alleged co-tenant and co-proprietary lessee of the premises, as a necessary party. The court noted the Court of Appeals held that dismissal for failure to join a necessary party should only be a last resort. It noted that neither of the two rationales enunciated in Saratoga County Chamber of Commerce v. Pataki for dismissal applied here, stating there was no danger of inconsistent judgments, nor was Messer deprived of either notice or an opportunity to be heard. The court also noted that petitioner could not simultaneously assert that the lease was valid as to respondent, but invalid as to Messer, given that the document petitioner relied on asserted respondent was the assignee of Messer. Thus, it stated that Messer, a co-lessee, was a necessary party to a summary proceeding under CPLR 1001(a). The court ruled Messer appeared in the proceeding through counsel and was subject to the court’s jurisdiction, hence could be made a party. Therefore, petitioner was directed to serve an amended notice of petition on Messer.
