Citation Numbers: 82 Misc. 2d 774
Judges: Stolarik
Filed Date: 6/10/1975
Status: Precedential
Modified Date: 2/5/2022
Plaintiff moves for summary judgment for partition of real property located at 8 Shorthill Road, New City, New York. The defendant cross-moves for summary judgment dismissing the plaintiff’s complaint, or, in the alternative, that the court declare the plaintiff to be constructive trustee of the subject property.
The property was conveyed by Elias L. Arnita (the decedent) and Elaine Arnita, his wife (the defendant), without consideration to Elias L. Arnita and Elaine Arnita (one-half interest) and to Joseph P. Arnita, plaintiff (one-half interest), by deed
The plaintiff contends that this paragraph of the will is null and void and that upon the death of Elias L. Arnita on March 22, 1969, the plaintiff and the defendant became tenants in common of the subject property by operation of law.
It is the defendant’s contention that a constructive trust should be declared in favor of the defendant and seeks an order dismissing the action pursuant to CPLR 3211 for the plaintiff’s failure to join necessary parties in whose absence the court should not proceed.
The court finds that triable issues of fact are present concerning the existence of a constructive trust. Accordingly, the plaintiff’s motion for summary judgment and the defendant’s cross motion for the same relief are denied.
With respect to defendant’s motion to dismiss for failure to join necessary parties in whose absence the court should not proceed, the ordinary rule is that remaindermen whose interests are merely in the proceeds of a share of lands subject to equitable conversion by the will of the testator are not necessary parties to an action for partition of such land. (Salisbury v Slade, 160 NY 278.) However, the determination of whether a person must be made a party to the action depends on the type of interest the plaintiff has and the specific relief asked for in the complaint. If the interests are distinct and separate and the relief sought is the protection of that interest, the only indispensable parties are those immediately involved. Accordingly, the test is whether the absentees have such interest in the subject matter before the court that their interests must necessarily be passed on if the controversy is to be settled, or whether a determination in their absence will nevertheless have the element of finality for the protection of those before the court. (Henshel v Held, 13 AD2d 771; China Sugar Refining Co. v Andersen, Meyer & Co., 6
Accordingly, the defendant’s motion to dismiss is granted only to the extent that the named beneficiaries under paragraph four of the will who are not presently parties to this action be joined as defendants.
Submit order on notice providing for joinder of the absent named beneficiaries under paragraph four of the will within 30 days of the date of service of the order to be entered herein with notice of entry thereof.