Article 10. Parties Generally

PARTIES GENERALLY IN THE CODE OF CPLR OF NEW YORK

The Sections of Article 10.:

parties generally cplr article 10

NY CPLR § 1001. NECESSARY JOINDER OF PARTIES

(a) Parties who should be joined.  Persons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants.  When a person who should join as a plaintiff refuses to do so he may be made a defendant.

(b) When joinder excused.  When a person who should be joined under subdivision (a) has not been made a party and is subject to the jurisdiction of the court, the court shall order him summoned.  If jurisdiction over him can be obtained only by his consent or appearance, the court, when justice requires, may allow the action to proceed without his being made a party.  In determining whether to allow the action to proceed, the court shall consider:

  1. whether the plaintiff has another effective remedy in case the action is dismissed on account of the nonjoinder;
  2. the prejudice which may accrue from the nonjoinder to the defendant or to the person not joined;
  3. whether and by whom prejudice might have been avoided or may in the future be avoided;
  4. the feasibility of a protective provision by order of the court or in the judgment;  and
  5. whether an effective judgment may be rendered in the absence of the person who is not joined.

NY CPLR § 1002. PERMISSIVE JOINDER OF PARTIES

(a) Plaintiffs.  Persons who assert any right to relief jointly, severally, or in the alternative arising out of the same transaction, occurrence, or series of transactions or occurrences, may join in one action as plaintiffs if any common question of law or fact would arise.

(b) Defendants.  Persons against whom there is asserted any right to relief jointly, severally, or in the alternative, arising out of the same transaction, occurrence, or series of transactions or occurrences, may be joined in one action as defendants if any common question of law or fact would arise.

(c) Separate relief;  separate trials.  It shall not be necessary that each plaintiff be interested in obtaining, or each defendant be interested in defending against, all the relief demanded or as to every claim included in an action;  but the court may make such orders as will prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom he asserts no claim and, who asserts no claim against him, and may order separate trials or make other orders to prevent prejudice.

NY CPLR § 1003. NONJOINDER AND MISJOINDER OF PARTIES

Nonjoinder of a party who should be joined under section 1001 is a ground for dismissal of an action without prejudice unless the court allows the action to proceed without that party under the provisions of that section.  Misjoinder of parties is not a ground for dismissal of an action.  Parties may be added at any stage of the action by leave of court or by stipulation of all parties who have appeared, or once without leave of court within twenty days after service of the original summons or at anytime before the period for responding to that summons expires or within twenty days after service of a pleading responding to it.  Parties may be dropped by the court, on motion of any party or on its own initiative, at any stage of the action and upon such terms as may be just.  The court may order any claim against a party severed and proceeded with separately.

NY CPLR § 1004. WHEN JOINDER UNNECESSARY

Except where otherwise prescribed by order of the court, an executor, administrator, guardian of the property of an infant, committee of the property of a judicially declared incompetent, conservator of the property of a conservatee, trustee of an express trust, insured person who has executed to his insurer either a loan or subrogation receipt, trust agreement, or other similar agreement, or person with whom or in whose name a contract has been made for the benefit of another, may sue or be sued without joining with him the person for or against whose interest the action is brought.

NY CPLR § 1006. INTERPLEADER

a) Stakeholder;  claimant;  action of interpleader.  A stakeholder is a person who is or may be exposed to multiple liability as the result of adverse claims.  A claimant is a person who has made or may be expected to make such a claim.  A stakeholder may commence an action of interpleader against two or more claimants.

(b) Defensive interpleader.  A defendant stakeholder may bring in a claimant who is not a party by filing a summons and interpleader complaint.  Service of process upon such a claimant shall be by serving upon such claimant a summons and interpleader complaint and all prior pleadings served in the action.

(c) Effect of pendency of another action against stakeholder.  If a stakeholder seeks to bring in a claimant pursuant to subdivision (b) and there is pending in a court of the state an action between the claimant and the stakeholder based upon the same claim, the appropriate court, on motion, upon such terms as may be just, may dismiss the interpleader complaint and order consolidation or joint trial of the actions, or may make the claimant a party and stay the pending action until final disposition of the action in which interpleader is so granted, and may make such further order as may be just.

(d) Abolition of former grounds for objection.  It is not ground for objection to interpleader that the claims of the several claimants or the titles on which their claims depend do not have a common origin or are not identical but are adverse to and independent of one another, or that the stakeholder avers that he is not liable in whole or in part to any or all of the claimants.

(e) Issue of independent liability.  Where the issue of an independent liability of the stakeholder to a claimant is raised by the pleadings or upon motion, the court may dismiss the claim of the appropriate claimant, order severance or separate trials, or require the issue to be tried in the action.

(f) Discharge of stakeholder.  After the time for all parties to plead has expired, the stakeholder may move for an order discharging him from liability in whole or in part to any party.  The stakeholder shall submit proof by affidavit or otherwise of the allegations in his pleading.  The court may grant the motion and require payment into court, delivery to a person designated by the court or retention to the credit of the action, of the subject matter of the action to be disposed of in accordance with further order or the judgment.  An order under subdivision (g) shall not discharge the stakeholder from liability to any claimant until an order granted under this subdivision is complied with.  The court shall impose such terms relating to payment of expenses, costs and disbursements as may be just and which may be charged against the subject matter of the action.  If the court shall determine that a party is entitled to interest, in the absence of an agreement by the stakeholder as to the rate of interest, he shall be liable to such party for interest to the date of discharge at a rate no greater than the lowest discount rate of the Federal Reserve Bank of New York for discounts for, and advances to, member banks in effect from time to time during the period for which, as found by the court, interest should be paid.

(g) Deposit of money as basis for jurisdiction.  Where a stakeholder is otherwise entitled to proceed under this section for the determination of a right to, interest in or lien upon a sum of money, whether or not liquidated in amount, payable in the state pursuant to a contract or claimed as damages for unlawful retention of specific real or personal property in the state, he may move, either before or after an action has been commenced against him, for an order permitting him to pay the sum of money or part of it into court or to a designated person or to retain it to the credit of the action.  Upon compliance with a court order permitting such deposit or retention, the sum of money shall be deemed specific property within the state within the meaning of paragraph two of section 314 .

NY CPLR § 1007. WHEN THIRD-PARTY PRACTICE ALLOWED

After the service of his answer, a defendant may proceed against a person not a party who is or may be liable to that defendant for all or part of the plaintiff’s claim against that defendant, by filing pursuant to section three hundred four of this chapter a third-party summons and complaint with the clerk of the court in the county in which the main action is pending, for which a separate index number shall not be issued but a separate index number fee shall be collected.  The third-party summons and complaint and all prior pleadings served in the action shall be served upon such person within one hundred twenty days of the filing.  A defendant serving a third-party complaint shall be styled a third-party plaintiff and the person so served shall be styled a third-party defendant.  The defendant shall also serve a copy of such third-party complaint upon the plaintiff’s attorney simultaneously upon issuance for service of the third-party complaint on the third-party defendant.

NY CPLR § 1008. ANSWER OF THIRD-PARTY DEFENDANT; DEFENSES

he third-party defendant shall answer the claim asserted against him or her by serving copies of his or her answer upon the third-party plaintiff.  The third-party defendant may assert against the plaintiff in his or her answer any defenses which the third-party plaintiff has to the plaintiff’s claim except an objection or defense that the summons and complaint, summons with notice or notice of petition and petition was not properly served, or that jurisdiction was not obtained over the third-party plaintiff.  The third-party defendant shall have the rights of a party adverse to the other parties in the action, including the right to counter-claim, cross-claim and appeal.

NY CPLR RULE RULE 1009. CLAIM BY PLAINTIFF AGAINST THIRD-PARTY DEFENDANT

Within twenty days after service of the answer to the third-party complaint upon plaintiff’s attorney, the plaintiff may amend his complaint without leave of court to assert against the third-party defendant any claim plaintiff has against the third-party defendant.

NY CPLR RULE RULE 1010. DISMISSAL OR SEPARATE TRIAL OF THIRD-PARTY COMPLAINT

The court may dismiss a third-party complaint without prejudice, order a separate trial of the third-party claim or of any separate issue thereof, or make such other order as may be just.  In exercising its discretion, the court shall consider whether the controversy between the third-party plaintiff and the third-party defendant will unduly delay the determination of the main action or prejudice the substantial rights of any party.

NY CPLR RULE RULE 1011. SUCCESSIVE THIRD-PARTY PROCEEDINGS; COUNTERCLAIMS

A third-party defendant may proceed pursuant to section 1007 against any person who is or may be liable to him for all or part of the third-party claim.  When a counterclaim is asserted against a plaintiff, he may proceed pursuant to section 1007 as if he were a defendant.

NY CPLR § 1012. INTERVENTION AS OF RIGHT; NOTICE TO ATTORNEY-GENERAL, CITY, COUNTY, TOWN OR VILLAGE WHERE CONSTITUTIONALITY IN ISSUE

(a) Intervention as of right.  Upon timely motion, any person shall be permitted to intervene in any action:

  1. when a statute of the state confers an absolute right to intervene;  or
  2. when the representation of the person’s interest by the parties is or may be inadequate and the person is or may be bound by the judgment;  or
  3. when the action involves the disposition or distribution of, or the title or a claim for damages for injury to, property and the person may be affected adversely by the judgment.

(b) Notice to attorney-general, city, county, town or village where constitutionality in issue. 

  1. When the constitutionality of a statute of the state, or a rule and regulation adopted pursuant thereto is involved in an action to which the state is not a party, the attorney-general, shall be notified and permitted to intervene in support of its constitutionality.
  2. When the constitutionality of a local law, ordinance, rule or regulation of a city, county, town or village is involved in an action to which the city, county, town or village that enacted the provision is not a party, such city, county, town or village shall be notified and permitted to intervene in support of its constitutionality.

  3. The court having jurisdiction in an action or proceeding in which the constitutionality of a state statute, local law, ordinance, rule or regulation is challenged shall not consider any challenge to the constitutionality of such state statute, local law, ordinance, rule or regulation unless proof of service of the notice required by this subdivision is filed with such court.

(c) Notice to comptroller of the state of New York where public retirement benefits are in issue.  Where public retirement benefits, paid, payable, claimed, or sought to be paid by a state retirement system or any other retirement system established for public employees within this state or any subdivision thereof, or the interpretation of any provisions of law or rules governing any such retirement system or the operation thereof, are involved in an action to which the comptroller of the state of New York is not a party, the court shall notify said comptroller, who shall be permitted, in his discretion, to intervene in such action or to file a brief amicus curiae.

NY CPLR § 1013. INTERVENTION BY PERMISSION

Upon timely motion, any person may be permitted to intervene in any action when a statute of the state confers a right to intervene in the discretion of the court, or when the person’s claim or defense and the main action have a common question of law or fact.  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.

NY CPLR § 1014. PROPOSED INTERVENTION PLEADING

A motion to intervene shall be accompanied by a proposed pleading setting forth the claim or defense for which intervention is sought.

NY CPLR § 1015. SUBSTITUTION UPON DEATH

(a) Generally.  If a party dies and the claim for or against him is not thereby extinguished the court shall order substitution of the proper parties.

(b) Devolution of rights or liabilities on other parties.  Upon the death of one or more of the plaintiffs or defendants in an action in which the right sought to be enforced survives only to the surviving plaintiffs or against the surviving defendants, the action does not abate.  The death shall be noted on the record and the action shall proceed.

NY CPLR § 1016. SUBSTITUTION OF COMMITTEE OR CONSERVATOR

If a party is adjudicated incompetent or a conservator has been appointed, the court shall order substitution of his committee or conservator.

NY CPLR § 1017. SUBSTITUTION IN CASE OF RECEIVERSHIP OR DISSOLUTION OF A CORPORATION

If a receiver is appointed for a party, or a corporate party is dissolved, the court shall order substitution of the proper parties.

NY CPLR § 1018. SUBSTITUTION UPON TRANSFER OF INTEREST

Upon any transfer of interest, the action may be continued by or against the original parties unless the court directs the person to whom the interest is transferred to be substituted or joined in the action.

NY CPLR § 1019. SUBSTITUTION OF PUBLIC OFFICERS

If a person made a party in his capacity as public officer dies or otherwise ceases to hold office, the action may be continued by or against his successor if it is shown to the court that there is need for so continuing it.  Before a substitution is made his successor and, unless the court otherwise orders, the party shall be given reasonable notice of the motion and accorded an opportunity to object.  When, in accordance with section 1023 , an officer is described by his official title and his name is not added, no substitution is necessary.

NY CPLR § 1020. SUBSTITUTION OF INDEMNITORS FOR EXECUTING OR ATTACHING OFFICER

Where an action is brought against an officer to recover a chattel levied upon by virtue of an execution or order of attachment, or to recover damages for the detention or sale of such a chattel, and an undertaking indemnifying the officer against such acts has been given, the court may order that the indemnitor be substituted for the officer.

NY CPLR § 1021. SUBSTITUTION PROCEDURE; DISMISSAL FOR FAILURE TO SUBSTITUTE; PRESENTATION OF APPEAL

A motion for substitution may be made by the successors or representatives of a party or by any party.  If a person who should be substituted does not appear voluntarily he may be made a party defendant.  If the event requiring substitution occurs before final judgment and substitution is not made within a reasonable time, the action may be dismissed as to the party for whom substitution should have been made, however, such dismissal shall not be on the merits unless the court shall so indicate.  If the event requiring substitution occurs after final judgment, substitution may be made in either the court from or to which an appeal could be or is taken, or the court of original instance, and if substitution is not made within four months after the event requiring substitution, the court to which the appeal is or could be taken may dismiss the appeal, impose conditions or prevent it from being taken.  Whether or not it occurs before or after final judgment, if the event requiring substitution is the death of a party, and timely substitution has not been made, the court, before proceeding further, shall, on such notice as it may in its discretion direct, order the persons interested in the decedent’s estate to show cause why the action or appeal should not be dismissed.

NY CPLR § 1022. SUBSTITUTION: EXTENSION OF TIME FOR TAKING PROCEDURAL STEPS

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, or, in case of dismissal of the action under section 1021 , is extended as to all parties until fifteen days after such dismissal.

NY CPLR § 1023. PUBLIC BODY OR OFFICER DESCRIBED BY OFFICIAL TITLE

When a public officer, body, board, commission or other public agency may sue or be sued in its official capacity, it may be designated by its official title, subject to the power of the court to require names to be added.

NY CPLR § 1024. UNKNOWN PARTIES

A party who is ignorant, in whole or in part, of the name or identity of a person who may properly be made a party, may proceed against such person as an unknown party by designating so much of his name and identity as is known.  If the name or remainder of the name becomes known all subsequent proceedings shall be taken under the true name and all prior proceedings shall be deemed amended accordingly.

NY CPLR § 1025. PARTNERSHIPS AND UNINCORPORATED ASSOCIATIONS

Two or more persons conducting a business as a partnership may sue or be sued in the partnership name, and actions may be brought by or against the president or treasurer of an unincorporated association on behalf of the association in accordance with the provisions of the general associations law.

NY CPLR § 1026. REVIEW OF DETERMINATIONS BY ADMINISTRATIVE OFFICERS OF THE UNIFIED COURT SYSTEM

In any action or proceeding brought to review a determination of the chief judge of the court of appeals, of the court of appeals or of the administrative board of the courts, made pursuant to the provisions of article seven-A of the judiciary law or section twenty-eight of article six of the constitution , the only proper party to be named therein shall be the chief administrator of the courts, in his representative capacity.  No action or proceeding so instituted shall name the chief judge, the court of appeals or any member thereof, or the administrative board or any member thereof as a party.

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