For Plaintiff: Matthew F. Fuller of counsel, Meyer, Fuller & Stockwell PLLC, Lake George. For Defendants Samuel P. Hoopes, III; Patricia Hoopes; Samuel and Patricia Hoopes QPRT. Samuel P. Hoopes, III, Trustee; Walter E. Gates; Alexandra B. Romano, Yvette A. Beeman and Nancy M. Reynolds as Co-Executors of the Estate of Vondee J. Beeman; Amy S. Bloom; and Odabashian Revocable Trust and Kathleen Odabashian, Trustee: John D. Wright of counsel, Bartlett, Pontiff, Stewart & Rhodes, P.C., Glens Falls. For Defendant James J. Lennon: Colm P. Ryan of counsel, Barclay Damon LLP, Albany. For Defendants William J. Baldwin and Andrea A. Baldwin as Trustees of the William J. Baldwin Trust; and William J. Baldwin and Andrea A. Baldwin as Trustees of the Andrea A. Baldwin Trust.1: Linda A. Mandel Clemente of counsel, Mandel Clemente, P.C., East Greenbush. DECISION AND ORDER Plaintiff is the owner of Beach Road, a private roadway on Lake George in Bolton Landing, Warren County. Defendants each have an easement over Beach Road to access their respective properties. Plaintiff alleges that defendant Samuel P. Hoopes III (hereinafter Hoopes) has altered the contours of the roadway and removed speed bumps installed to ensure the safe passage of vehicles. On May 21, 2019, plaintiff commenced this action by the filing of a summons with notice to quiet title to Beach Road and bar any further interference from Hoopes and others. As relevant here, Hoopes was served on June 1, 2019 via substitute service on his mother — defendant Patricia Hoopes — at her home located at 63-74 Fish Point Road in Bolton Landing. On August 9, 2019, John D. Wright, Esq. served a notice of appearance and demand for complaint on behalf of Hoopes and his mother, as well as defendants Samuel and Patricia Hoopes QPRT, Samuel P. Hoopes, III, Trustee; Walter E. Gates; Vondee J. Beeman; Amy S. Bloom; and Odabashian Revocable Trust and Kathleen Odabashian, Trustee. A complaint was thereafter filed on June 4, 2020 and, on September 17, 2020, plaintiff’s former counsel — Scott Ronda, Esq. — requested a preliminary conference. On November 11, 2020, Attorney Wright sent correspondence advising that Beeman passed away on August 25, 2019 and the action was therefore stayed (see CPLR 1015). The Court then sent correspondence on December 4, 2020 directing that a motion for substitution be filed relative to Beeman within 30 days (see CPLR 1021). Matthew F. Fuller, Esq. was thereafter substituted as counsel for plaintiff on February 25, 2021 and requested an extension in which to file the motion for substitution. This request was granted and a motion seeking to substitute the co-executors of Beeman’s Estate as defendants was filed on June 28, 2021. On July 30, 2021 — while the motion was pending — Attorney Wright sent correspondence advising that former defendant Byron Lapham (hereinafter Lapham) passed away prior to commencement of the action. Following a conference on November 24, 2021, plaintiff was directed to file a second motion, this one seeking to remove Lapham as a defendant.2 This second motion was filed on June 17, 2022 and, by Decision and Order dated October 17, 2022, substitution was granted relative to Beeman and Lapham was removed as a defendant, with the caption amended accordingly. On October 25, 2022, Hoopes was personally served with the summons with notice, together with a copy of the October 17, 2022 Decision and Order, at 50 Opera Lane in Bolton Landing.3 Presently before the Court is (1) Hoopes’ pre-answer motion to dismiss the complaint as against him for lack of personal jurisdiction (see CPLR 3211 [a] [8]), as well as to dismiss the complaint in its entirety based upon the absence of a necessary party (see CPLR 3211 [a] [10]); and (2) plaintiff’s cross motion to extend the time for service upon Hoopes (see CPLR 306-b). The motion and cross motion will be addressed ad seriatim. Motion to Dismiss Insofar as the first aspect of the motion is concerned, Hoopes contends that the Court is without personal jurisdiction over him because the June 1, 2019 substitute service at his mother’s home — as opposed to his home — was insufficient under CPLR 308 (2). Indeed, plaintiff appears to concede this point. Hoopes further contends that the Court is without personal jurisdiction over him because the October 25, 2022 service was insufficient. Specifically, Hoopes contends that (1) such service was more than 120 days after commencement of the action, in violation of CPLR 306-b; and (2) he was served with the original summons with notice, which did not include the amended caption. With respect to the first contention, the 120 days in which to serve the summons with notice expired on September 18, 2019. That being said, Beeman passed away on August 25, 2019 — prior to expiration of the time for service — at which point the action was stayed pending substitution of her personal representative (see CPLR 1015). CPLR 1022 provides as follows: “Unless the court orders otherwise, if the time for making a motion for a new trial or for taking an appeal or for making a motion for permission to appeal or for taking any other procedural step in the action has not expired before the occurrence of an event permitting substitution of a party, the period is extended as to all parties until fifteen days after substitution is made….” Here, the time for service was extended to November 1, 2022, with Hoopes timely served on October 25, 2022 (see CPLR 1022; Bertucci v. Mosey, 45 AD3d 1385, 1387 [4th Dept 2007]). With respect to Hoopes’ second contention, the October 17, 2022 Decision and Order did not direct the filing of any amended pleadings. Rather, it simply directed that the caption be amended to reflect the substitution relative to Beeman and the removal of Lapham. In this regard, the Court notes that Hoopes was served not only with the summons with notice, but also with the Decision and Order, thus apprising him of the amended caption. To that end, Hoopes’ contention that the summons with notice “failed to list all current [d]efendants” is without merit. Insofar as the second aspect of the motion is concerned, Hoopes contends that if the complaint is dismissed as against him, it must be dismissed in its entirety based upon the absence of a necessary party (see CPLR 1001 [b]). Hoopes further contends that the action must be dismissed because defendant James Lennon conveyed the title to his property to 46 Fish Point LLC on January 8, 2019, prior to commencement of the action. This contention is also without merit. “When a person who should be joined…has not been made a party and is subject to the jurisdiction of the court, the court shall order him summoned.” Here, there does not appear to be any impediment to the substitution of 46 Fish Point LLC for Lennon. It is noteworthy that Lennon is represented by counsel, who has never raised this issue. Based upon the foregoing, Hoopes’ motion to dismiss is granted to the extent that plaintiff is directed to file a motion to substitute 46 Fish Point LLC for Lennon within thirty (30) days of the date of this Decision and Order. The motion is otherwise denied, with Hoopes directed to serve an answer to the complaint within thirty (30) days of the date of this Decision and Order. Cross Motion for Extension to Serve In view of the determination relative to Hoopes’ motion, plaintiff’s cross motion for an extension of time to serve him is dismissed as moot. Therefore, having considered NYSCEF document Nos. 82 through 92, and 94, and having heard oral argument on October 6, 2023 with Matthew F. Fuller, Esq. appearing on behalf of plaintiff and John D. Wright, Esq. appearing on behalf of Hoopes, it is hereby ORDERED that Hoopes’ motion to dismiss is granted to the extent that plaintiff is directed to file a motion to substitute 46 Fish Point LLC for Lennon within thirty (30) days of the date of this Decision and Order; and it is further ORDERED that the motion is otherwise denied, with Hoopes directed to serve an answer to the complaint within thirty (30) days of the date of this Decision and Order; and it is further ORDERED that plaintiff’s cross motion for an extension of time to serve Hoopes is dismissed as moot. This Decision and Order has been efiled by the Court. Counsel for plaintiff is hereby directed to serve with notice of entry. Dated: October 25, 2023
