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Strocchia v. Celentano Provisions

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


January 5, 2010

JOSEPH STROCCHIA, APPELLANT,
v.
CELENTANO PROVISIONS, INC., ET AL., RESPONDENTS.

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Hart, J.), entered August 20, 2008, which, upon, sua sponte, directing the dismissal of the complaint, in effect, for failure to join a necessary party, is in favor of the defendants and against him dismissing the complaint.

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.

REINALDO E. RIVERA, J.P., HOWARD MILLER, THOMAS A. DICKERSON and SHERI S. ROMAN, JJ.

(Index No. 25352/05)

DECISION & ORDER

ORDERED that the judgment is reversed, on the law, with costs, the complaint is reinstated, and the matter is remitted to the Supreme Court, Queens County, for further proceedings before a different justice.

The Supreme Court erroneously dismissed the complaint, in effect, for failure to join Bovis Lend Lease (hereinafter Bovis), a general contractor, as a necessary party. The plaintiff, who was not a protected person under the Labor Law (see generally Mordkofsky v V.C.V. Dev. Corp., 76 NY2d 573, 576-577; Whelen v Warwick Val. Civic & Social Club, 47 NY2d 970, 971), did not allege any Labor Law violations in his complaint. Instead, the plaintiff commenced this action solely against Celentano Provisions, Inc., R.A. Lodvichetti, Alex McCaskey, and New Town Corp., d/b/a New Town Masonry, under a theory of common-law negligence. As such, under the circumstances of this case, joining Bovis as a party was not necessary in order to accord complete relief between the plaintiff and the respective defendants, nor would Bovis have been inequitably affected by any judgment in the action (see CPLR 1001[a]).

We note that Justice Hart's conduct during the trial was improper and consisted, inter alia, of his continuous, wrongful interjection into the trial proceedings.

RIVERA, J.P., MILLER, DICKERSON and ROMAN, JJ., concur.

20100105

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