NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
April 30, 2009
LEEWARD ISLES RESORTS, LIMITED, PLAINTIFF-RESPONDENT,
CHARLES C. HICKOX, DEFENDANT-APPELLANT.
Order, Supreme Court, New York County (Helen E. Freedman, J.), entered March 14, 2008, which denied defendant's motion to vacate a prior order, same court and Justice, entered January 9, 2007, granting plaintiff's motion for partial summary judgment, and, upon said vacatur, for summary judgment dismissing the complaint on the ground that plaintiff failed to join necessary parties, unanimously affirmed, with costs.
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.
Gonzalez, P.J., Tom, Sweeny, Buckley, Acosta, JJ.
Assuming the non-joined parties are necessary parties within the meaning of CPLR 1001(a), defendant has not shown as a matter of law that he is entitled to dismissal of the complaint for failure to join them. Defendant contends that these parties are beyond the jurisdiction of the court and cannot be joined. However, even if these parties were shown to be beyond the jurisdiction of the court, consideration of the factors enumerated in CPLR 1001(b) would support allowing the action to proceed, especially as "dismissal for failure to join a necessary party should eventuate only as a last resort" (L-3 Communications Corp. v SafeNet, Inc., 45 AD3d 1, 11  [internal quotation marks and citation omitted]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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