Opinion
140 306342/10.
02-04-2016
Peter Jennings, Plaintiff–Appellant, v. CHASE HOME FINANCE, LLC, et al., Defendants–Respondents, Norman W. Leon, et al., Defendants. [And a Third–Party Action].
Law Office of Michael O. Adeyemi, Brooklyn (Michael O. Adeyemi of counsel), for appellant. Dorf & Nelson LLP, Rye (Jonathan B. Nelson of counsel), for respondents.
Law Office of Michael O. Adeyemi, Brooklyn (Michael O. Adeyemi of counsel), for appellant.
Dorf & Nelson LLP, Rye (Jonathan B. Nelson of counsel), for respondents.
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 A.D.3d 867, 870, 923 N.Y.S.2d 591 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 A.D.3d 328, 330, 812 N.Y.S.2d 52 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 A.D.3d 732, 734, 853 N.Y.S.2d 162 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 A.D.3d 370, 371, 783 N.Y.S.2d 305 2d Dept.2004, lv. denied 4 N.Y.3d 704, 792 N.Y.S.2d 897, 825 N.E.2d 1092 2005 ).
TOM, J.P., FRIEDMAN, SWEENY, ACOSTA, ANDRIAS, JJ., concur.