New York Supreme and/or Appellate Courts Appellate Division, First Department
April 5, 2012
MANNUCCIO MANNUCCI, M.D., ET AL.,
THE MISSIONARY SISTERS OF THE SACRED HEART OF JESUS,
Mannucci v Missionary Sisters of the Sacred Heart of Jesus
Decided on April 5, 2012
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.
Mazzarelli, J.P., Saxe, Moskowitz, Manzanet-Daniels, Roman, JJ.
Order, Supreme Court, New York County (Eileen Bransten, J.), entered January 5, 2011, which, to the extent appealed from, granted defendant's motion to dismiss the amended complaint without prejudice and with leave to replead, unanimously affirmed, without costs.
Plaintiffs' claims against defendant are based solely on the theory that defendant is the alter ego of nonparty Cabrini Medical Center. Accordingly, Cabrini is a necessary party to this action (see Stewart Tenants Corp. v Square Indus., 269 AD2d 246, 248 ). Although the motion court did not consider whether the action should proceed without Cabrini pursuant to CPLR 1001(b), the matter need not be remanded (cf. Matter of Red Hook/Gowanus Chamber of Commerce v New York City Bd. of Stds. & Appeals, 5 NY3d 452, 462 ). Indeed, because Cabrini has filed for bankruptcy protection and plaintiffs have not obtained relief from the automatic stay, the alter ego claims must be dismissed (see St. Paul Fire & Mar. Ins. Co. v PepsiCo, Inc., 884 F2d 688, 701-704 ; Corman v LaFountain, 38 AD3d 706, 708 ).
We have considered plaintiffs' remaining contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 5, 2012
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