In determining whether to allow the action to proceed, the court shall consider:. 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.
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. Nonjoinder of a party who should be joined under section 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. 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.
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. 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. 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.
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. 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.
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.
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 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 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.
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.
A third-party defendant may proceed pursuant to section 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 as if he were a defendant.
Upon timely motion, any person shall be permitted to intervene in any action:. 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.
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. A motion to intervene shall be accompanied by a proposed pleading setting forth the claim or defense for which intervention is sought.
If a party dies and the claim for or against him is not thereby extinguished the court shall order substitution of the proper 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. If a party is adjudicated incompetent or a conservator has been appointed, the court shall order substitution of his committee or conservator. If a receiver is appointed for a party, or a corporate party is dissolved, the court shall order substitution of the proper parties. 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.
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 , an officer is described by his official title and his name is not added, no substitution is necessary. 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.
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.
The Fifth cause of action alleges breach of contract for an alleged failure to pay commissions. The Sixth cause of action is brought in quantum meruit for the value of the services Yunatov rendered. The Seventh cause of action is for unjust enrichment, the Eighth cause of action is for fraud, the Ninth cause of action is for attorney misconduct and deception, the Tenth cause of action is for an equitable accounting, the Eleventh cause of action is for conversion, the Twelfth cause of action is for trademark infringement and dilution, and the Thirteenth cause of action is for violations of the General Business Law.
The moving third-party defendant and plaintiffs submitted the instant motion for an Order dismissing the third-party complaint on the ground that it is procedurally improper. The interposition of the third-party complaint is procedurally improper for that reason.
The third-party claim must be sufficiently related to the main action to at least raise the question of whether the third-party defendant may be liable to defendant-third-party plaintiff, for whatever reason, for the damages for which the latter may be liable to plaintiff.
The precept is that the liability sought to be imposed upon a third-party defendant must arise from or be conditioned upon the liability asserted against the third-party plaintiff in the main action. In other words, the third party defendant must be under some type of claim over liability that is dependent upon the defendant's liability to the plaintiff. The liability must be one rooted in indemnity or contribution. The third-party complaint brought against the plaintiffs', who are already parties and the subject of counterclaims, is not proper for this additional reason.
Yunatov's arguments that there is a danger of a waste of judicial resources or inconsistent results if his third party complaint is dismissed have no merit. Indeed, Yunatov has already served an answer containing counterclaims against the plaintiffs and at least some other parties alleged to be liable.
Moreover, multiple cases involving common questions of law and fact may be consolidated, and set-offs may be raised in the defendant's answer. New York procedural law including the special rules applying to litigation in the Commercial Division of the New York courts is not particularly complex.
Still, there are procedural rules and as this decision illustrates, if a litigant ignores them, it can pay a price. Subcribe to Our Blogs.
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