Jennings v. Chase Home Finance, LLC ( 2016 )

Jennings v Chase Home Fin., LLC (2016 NY Slip Op 00773)

Jennings v Chase Home Fin., LLC

2016 NY Slip Op 00773

Decided on February 4, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 4, 2016
Tom, J.P., Friedman, Sweeny, Acosta, Andrias, JJ.

140 306342/10

[*1]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.

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 AD3d 867, 870 [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 AD3d 328, 330 [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 AD3d 732, 734 [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 AD3d 370, 371 [2d Dept 2004], lv denied 4 NY3d 704 [2005]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 4, 2016

CLERK