Joinder, Nonjoinder, Intervention, and Forum Non Con

CPLR § 1001 Necessary joinder of parties
(a) Parties who should be joined
(b) When joinder excused

CPLR § 1003 Nonjoinder and misjoinder of parties

CPLR § 1012 Intervention as of right; notice to attorney-general, city, county, town or village where constitutionality in issue

CPLR R. 327 Inconvenient forum

EVERYTHING BUT FORUM NON CON

DeMato v Mallin, 2009 NY Slip Op 08991 (App. Div., 2nd, 2009)

Under the circumstances of this case, the Supreme Court properly directed that the Town be joined as a defendant in order to accord complete relief between the parties (see CPLR 1001[a], [b]; Lazzari v Town of Eastchester, 62 AD3d 1002; see also Matter of Lezette v Board of Educ., Hudson City School Dist., 35 NY2d 272, 282). 

Mizrahi v Flaum, 2010 NY Slip Op 00117 (App. Div., 2nd, 2010)

When the Bankruptcy Trustee, Kenneth P. Silverman, abandoned the instant legal malpractice claim at the conclusion of the bankruptcy proceedings, the claim immediately revested with the debtor, Jennifer Mizrahi (see 11 USCA § 554; Guiffrida v Storico Dev., LLC, 60 AD3d 1286; Culver v Parsons, 7 AD3d 931). Thus, the Supreme Court providently exercised its discretion in granting that branch of Silverman's motion which was to substitute Mizrahi as the plaintiff in his place (see CPLR 1003; JCD Farms v Juul-Nielsen, 300 AD2d 446; see also Silverman v Flaum, 42 AD3d 447).

Kinzelberg v Design Quest, Ltd., 67 AD3d 743 (App. Div., 2nd, 2009)

Contrary to the plaintiff's contention, the Supreme Court did not improvidently exercise its discretion in granting that branch of the defendants' motion which was pursuant to CPLR 1003 to the extent of adding Messardiere Design Quest, Inc., as a defendant (see Merchants Bank of N.Y. v Rosenberg, 31 AD3d 507, 508 [2006]; Rutar v Hawes, 157 AD2d 654 [1990]).

Washington Mut. Bank v 373 8th St. Realty Corp., 66 AD3d 1007 (App. Div., 2nd, 2009)

In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Dabiri, J.), dated September 26, 2008, as granted the motion of certain tenants for leave to intervene in the action as party defendants and to be given notice of the rent overcharge determination made by the New York State Division of Housing and Community Renewal included in any notice of foreclosure sale.

Ordered that the order is affirmed insofar as appealed from, with costs.

The intervenors were properly granted leave to intervene (see CPLR 1012).

Wells Fargo Bank, Natl. Assn. v McLean, 2010 NY Slip Op 00838 (App. Div., 2nd, 2010)

ORDERED that the order is reversed, on the facts and in the exercise of discretion, with one bill of costs, and that branch of the motion of NARI, Inc., d/b/a Firestone Construction Company, which was for leave to intervene pursuant to CPLR 1013 is granted.

Upon a timely motion, a person is permitted to intervene as of right in an action involving the disposition of property where that person may be adversely affected by the judgment (see CPLR 1012[a][3]; Velazquez v Decaudin, 49 AD3d 712, 717; George v Grand Bay Assoc. Enter. Inc., 45 AD3d 451, 452; Greenpoint Sav. Bank v McMann Enters., 214 AD2d 647; but see Citibank, N.A. v Plagakis, 8 AD3d 604, 605). In addition, a court, in its discretion, may permit a person to intervene, inter alia, when the person's claim or defense and the main action have a common question of law or fact (see CPLR 1013). Whether intervention is sought as a matter of right under CPLR 1012(a), or as a matter of discretion under CPLR 1013, is of little practical significance since a timely motion for leave to intervene should be granted, in either event, where the intervenor has a real and substantial interest in the outcome of the proceedings (see Berkoski v Board of Trustees of Inc. Vil. of Southampton, 67 AD3d 840; Matter of Bernstein v Feiner, 43 AD3d 1161, 1162; Sieger v Sieger, 297 AD2d 33, 36; County of Westchester v Department of Health of State of N.Y., 229 AD2d 460, 461; Perl v Aspromonte Realty Corp., 143 AD2d 824, 825). In exercising its discretion, the court shall consider whether the intervention will unduly delay the determination of the action or prejudice the substantial rights of any party (see Reliance Ins. Co. of N.Y. v Information Display Tech., 2 AD3d 701).

Halstead v Dolphy, 2010 NY Slip Op 00810 (App. Div., 2nd, 2010)

The appellant, Cambridge Home Capital, LLC (hereinafter Cambridge), demonstrated that it holds a mortgage on the real property which is the subject of this action, and that its interest in the property may be adversely affected by the judgment sought. Cambridge's interest in the subject property entitles it to intervene as a matter of right (see CPLR 1012[a][3]; NYCTL 1999-1 Trust v Chalom, 47 AD3d 779, 780; George v Grand Bay Assoc. Enter. Inc., 45 AD3d 451). Although Cambridge did not seek leave to intervene until more than four years after the commencement of this action, intervention may occur at any time, provided that it does not unduly delay the action or prejudice existing parties (see Poblocki v Todoro, 55 AD3d 1346, 1347; Matter of Romeo v New York State Dept. of Educ., 39 AD3d 916, 917; see also Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C1012:5). Here, the motion for leave to intervene was made before a note of issue was filed in this [*2]action, and Cambridge indicated its willingness to obviate delay and prejudice to the existing parties by stipulating that it will conduct no additional discovery in this action. Under these circumstances, Cambridge should have been granted leave to intervene on the condition that it so stipulated (see Poblocki v Todoro, 55 AD3d 1346; cf. Rectory Realty Assoc. v Town of Southampton, 151 AD2d 737, 738).

FORUM NON CON

Gersten v Lemke, 2009 NY Slip Op 09725 (App. Div., 1st, 2009)

Defendant's bare assertions of inconvenience fail to show the manner in which his proposed witnesses would be inconvenienced by having to travel between Nassau and New York Counties (see Schoen v Chase Manhattan Automotive Fin. Corp., 274 AD2d 345 [2000]; cf. Cardona v Aggressive Heating, 180 AD2d 572, 573 [1992]; Heinemann v Grunfeld, 224 AD2d 204). In addition, the home or work addresses of allegedly inconvenienced witnesses were improperly first provided in defendant's reply papers (see Schoen, supra; Root v Brotmann, 41 AD3d 247 [2007]).

Tiger Sourcing (HK) Ltd. v GMAC Commercial Fin. Corporation-Can., 66 AD3d 1002 (App. Div., 2nd, 2009)

CPLR 327 "permits a court to stay or dismiss such actions where it is determined that the action, although jurisdictionally sound, would be better adjudicated elsewhere" (Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 478-479 [1984], cert denied 469 US 1108 [1985]). The defendant bears the burden in a motion to dismiss on the ground of forum non conveniens to "demonstrate relevant private or public interest factors which militate against accepting the litigation" (id. at 479). On such a motion, the Supreme Court is to weigh the parties' residencies, the location of the witnesses and any hardship caused by the choice of forum, the availability of an alternative forum, the situs of the action, and the burden on the New York court system (see Prestige Brands, Inc. v Hogan & Hartson, LLP, 65 AD3d 1028 [2009]; Turay v Beam Bros. Trucking, Inc., 61 AD3d 964, 966 [2009]). No one factor is dispositive (see Turay v Beam Bros. Trucking, Inc., 61 AD3d at 966; Brinson v Chrysler Fin., 43 AD3d 846, 848 [2007]). The Supreme Court's determination should not be disturbed unless the court improvidently exercised its discretion or failed to consider the relevant factors (see Smolik v Turner Constr. Co., 48 AD3d 452, 453-454 [2008]; Brinson v Chrysler Fin., 43 AD3d at 848).

Under the circumstances of this case, the Supreme Court providently exercised its discretion in granting that branch of the defendants' joint motion which was to dismiss the complaint on the ground of forum non conveniens (see Islamic Republic of Iran v Pahlavi, 62 NY2d 474 [1984]; Prestige Brands, Inc. v Hogan & Hartson, LLP, 65 AD3d 1028 [2009]; Turay v Beam Bros. Trucking, Inc., 61 AD3d 964 [2009]; Smolik v Turner Constr. Co., 48 AD3d 452 [2008]; Stravalle v Land Cargo, Inc., 39 AD3d 735, 736 [2007]).

Rabinowitz v Devereux Conn. Glenholme, 2010 NY Slip Op 00378 (App. Div., 1st, 2010)

The common law doctrine of forum non conveniens, codified in CPLR 327, permits a court to stay or dismiss an action where the action, although jurisdictionally sound, would be better adjudicated elsewhere (Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 479 [1984], cert denied 469 US 1108 [1985]; see CPLR 327). Among the factors to be considered are the burden on the New York courts; the potential hardship to the defendant; the availability of an alternate forum in which the plaintiff may bring suit; the residency of the parties; the forum in which the transaction from which the cause of action arose; and the extent to which the plaintiff's interests may otherwise be properly served by pursuing the claim in this State (see Pahlavi, 62 NY2d at 479; Varkonyi v S.A. Empresa De Viacao Airea Rio Grandense [Varig], 22 NY2d 333, 338 [1968]; Nyugen v Banque Indosuez, 19 AD3d 292, 294 [2005], lv denied 6 NY3d 703 [2006]).

Here, the motion court properly considered all relevant factors (see Pahlavi, 62 NY2d at 479), and concluded that New York was an appropriate forum for litigating this dispute. Both plaintiffs reside in New York, and the matter bears a substantial nexus to New York in that the New York City Board of Education funded plaintiff's residence at defendant school, located in Connecticut. While defendants claim that it would cause undue hardship to maintain the action in New York because it would be difficult to find substitutes for the witnesses who work at the school when they are testifying and because the witnesses are Connecticut residents whose personal lives would be disrupted if the trial were conducted in New York, these circumstances [*2]would exist even if the trial were conducted in Connecticut.

The bold is mine.