New York Civil Practice
Law & Rules
NYCPLR Article 10
PARTIES GENERALLY
1001. Necessary joinder of parties.
(a) Parties who should be joined.
(b) When joinder excused.
1002. Permissive joinder of parties.
(a) Plaintiffs.
(b) Defendants.
(c) Separate relief; separate trials.
1003. Nonjoinder and misjoinder of parties.
1004. When joinder unnecessary.
1006. Interpleader.
(a) Stakeholder; claimant; action of interpleader.
(b) Defensive interpleader.
(c) Effect of pendency of another action against
stakeholder.
(d) Abolition of former grounds for objection.
(e) Issue of independent liability.
(f) Discharge of stakeholder.
(g) Deposit of money as basis for jurisdiction.
1007. When third-party practice allowed.
1008. Answer of third-party defendant; defenses.
1009. Claim by plaintiff against third-party defendant.
1010. Dismissal or separate trial of third-party complaint.
1011. Successive third-party proceedings; counterclaims.
1012. Intervention as of right; notice to attorney-general where
constitutionality in issue.
(a) Intervention as of right.
(b) Notice to attorney-general where constitutionality
in issue.
(c) Notice to comptroller of the state of New York where
public retirement benefits are in issue.
1013. Intervention by permission.
1014. Proposed intervention pleading.
1015. Substitution upon death.
(a) Generally.
(b) Devolution of rights or liabilities on other
parties.
1016. Substitution of committee or conservator.
1017. Substitution in case of receivership or dissolution of a
corporation.
1018. Substitution upon transfer of interest.
1019. Substitution of public officers.
1020. Substitution of indemnitors for executing or attaching
officer.
1021. Substitution procedure; dismissal for failure to
substitute; presentation of appeal.
1022. Substitution: extension of time for taking procedural
steps.
1023. Public body or officer described by official title.
1024. Unknown parties.
1025. Partnerships and unincorporated associations.
1026. Review of determinations by administrative officers of the
unified court system.
S 1001. Necessary joinder of parties. (a) Parties who should be
joined. Persons who ought to be parties if complete relief is to be
accorded between the persons who are parties to the action or who might
be inequitably affected by a judgment in the action shall be made
plaintiffs or defendants. When a person who should join as a plaintiff
refuses to do so he may be made a defendant.
(b) When joinder excused. When a person who should be joined under
subdivision (a) has not been made a party and is subject to the
jurisdiction of the court, the court shall order him summoned. If
jurisdiction over him can be obtained only by his consent or appearance,
the court, when justice requires, may allow the action to proceed
without his being made a party. In determining whether to allow the
action to proceed, the court shall consider:
1. whether the plaintiff has another effective remedy in case the
action is dismissed on account of the nonjoinder;
2. the prejudice which may accrue from the nonjoinder to the defendant
or to the person not joined;
3. whether and by whom prejudice might have been avoided or may in the
future be avoided;
4. the feasibility of a protective provision by order of the court or
in the judgment; and
5. whether an effective judgment may be rendered in the absence of the
person who is not joined.
S 1002. Permissive joinder of parties. (a) Plaintiffs. 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.
(b) Defendants. 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.
(c) Separate relief; separate trials. It shall not be necessary that
each plaintiff be interested in obtaining, or each defendant be
interested in defending against, all the relief demanded or as to every
claim included in an action; but the court may make such orders as will
prevent a party from being embarrassed, delayed, or put to expense by
the inclusion of a party against whom he asserts no claim and, who
asserts no claim against him, and may order separate trials or make
other orders to prevent prejudice.
S 1003. Nonjoinder and misjoinder of parties. Nonjoinder of a party
who should be joined under section 1001 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.
S 1004. When joinder unnecessary. 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.
S 1006. Interpleader. (a) Stakeholder; claimant; action of
interpleader. 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.
(b) Defensive interpleader. 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.
(c) Effect of pendency of another action against stakeholder. 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.
(d) Abolition of former grounds for objection. 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.
(e) Issue of independent liability. 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.
(f) Discharge of stakeholder. 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.
(g) Deposit of money as basis for jurisdiction. 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 314.
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Article 10 Continued . . .
S 1007. When third-party practice allowed. After the service of his
answer, a defendant may proceed against a person not a party who is or
may be liable to that defendant for all or part of the plaintiff`s claim
against that defendant, by filing pursuant to section three hundred four
of this chapter a third-party summons and complaint with the clerk of
the court in the county in which the main action is pending, for which a
separate index number shall not be issued but a separate index number
fee shall be collected. 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 defendant
shall also serve a copy of such third-party complaint upon the
plaintiff`s attorney simultaneously upon issuance for service of the
third-party complaint on the third-party defendant.
S 1008. Answer of third-party defendant; defenses. The third-party
defendant shall answer the claim asserted against him by serving copies
of his answer upon the third-party plaintiff. The third-party defendant
may assert against the plaintiff in his answer any defenses which the
third-party plaintiff has to the plaintiff`s claim. 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.
Rule 1009. Claim by plaintiff against third-party defendant. Within
twenty days after service of the answer to the third-party complaint
upon plaintiff`s attorney, the plaintiff may amend his complaint without
leave of court to assert against the third-party defendant any claim
plaintiff has against the third-party defendant.
Rule 1010. Dismissal or separate trial of third-party complaint. 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.
Rule 1011. Successive third-party proceedings; counterclaims. A
third-party defendant may proceed pursuant to section 1007 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 1007 as if he were a defendant.
S 1012. Intervention as of right; notice to attorney-general where
constitutionality in issue. (a) Intervention as of right. Upon timely
motion, any person shall be permitted to intervene in any action:
1. when a statute of the state confers an absolute right to intervene;
or
2. when the representation of the person`s interest by the parties is
or may be inadequate and the person is or may be bound by the judgment;
or
3. when the action involves the disposition or distribution of, or the
title or a claim for damages for injury to, property and the person may
be affected adversely by the judgment.
(b) Notice to attorney-general where constitutionality in issue. When
the constitutionality of a statute of the state is involved in an action
to which the state is not a party, the court shall notify the
attorney-general, who shall be permitted to intervene in support of its
constitutionality.
(c) Notice to comptroller of the state of New York where public
retirement benefits are in issue. Where public retirement benefits,
paid, payable, claimed, or sought to be paid by a state retirement
system or any other retirement system established for public employees
within this state or any subdivision thereof, or the interpretation of
any provisions of law or rules governing any such retirement system or
the operation thereof, are involved in an action to which the
comptroller of the state of New York is not a party, the court shall
notify said comptroller, who shall be permitted, in his discretion, to
intervene in such action or to file a brief amicus curiae.
S 1013. Intervention by permission. Upon timely motion, any person may
be permitted to intervene in any action when a statute of the state
confers a right to intervene in the discretion of the court, or when the
person`s claim or defense and the main action have a common question of
law or fact. 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.
S 1014. Proposed intervention pleading. A motion to intervene shall be
accompanied by a proposed pleading setting forth the claim or defense
for which intervention is sought.
S 1015. Substitution upon death. (a) Generally. If a party dies and
the claim for or against him is not thereby extinguished the court shall
order substitution of the proper parties.
(b) Devolution of rights or liabilities on other 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.
S 1016. Substitution of committee or conservator. If a party is
adjudicated incompetent or a conservator has been appointed, the court
shall order substitution of his committee or conservator.
S 1017. Substitution in case of receivership or dissolution of a
corporation. If a receiver is appointed for a party, or a corporate
party is dissolved, the court shall order substitution of the proper
parties.
S 1018. Substitution upon transfer of interest. 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.
S 1019. Substitution of public officers. 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
1023, an officer is described by his official title and his name is not
added, no substitution is necessary.
S 1020. Substitution of indemnitors for executing or attaching
officer. 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.
S 1021. Substitution procedure; dismissal for failure to substitute;
presentation of appeal. 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. If the event requiring substitution occurs before final
judgment and substitution is not made within a reasonable time, the
action may be dismissed as to the party for whom substitution should
have been made, however, such dismissal shall not be on the merits
unless the court shall so indicate. If the event requiring substitution
occurs after final judgment, substitution may be made in either the
court from or to which an appeal could be or is taken, or the court of
original instance, and if substitution is not made within four months
after the event requiring substitution, the court to which the appeal is
or could be taken may dismiss the appeal, impose conditions or prevent
it from being taken. Whether or not it occurs before or after final
judgment, if the event requiring substitution is the death of a party,
and timely substitution has not been made, the court, before proceeding
further, shall, on such notice as it may in its discretion direct, order
the persons interested in the decedent`s estate to show cause why the
action or appeal should not be dismissed.
S 1022. Substitution: extension of time for taking procedural steps.
Unless the court orders otherwise, if the time for making a motion for a
new trial or for taking an appeal or for making a motion for permission
to appeal or for taking any other procedural step in the action has not
expired before the occurrence of an event permitting substitution of a
party, the period is extended as to all parties until fifteen days after
substitution is made, or, in case of dismissal of the action under
section 1021, is extended as to all parties until fifteen days after
such dismissal.
Sec. 1023. Public body or officer described by official title. When a
public officer, body, board, commission or other public agency may sue
or be sued in its official capacity, it may be designated by its
official title, subject to the power of the court to require names to be
added.
S 1024. Unknown parties. A party who is ignorant, in whole or in part,
of the name or identity of a person who may properly be made a party,
may proceed against such person as an unknown party by designating so
much of his name and identity as is known. If the name or remainder of
the name becomes known all subsequent proceedings shall be taken under
the true name and all prior proceedings shall be deemed amended
accordingly.
S 1025. Partnerships and unincorporated associations. Two or more
persons conducting a business as a partnership may sue or be sued in the
partnership name, and actions may be brought by or against the president
or treasurer of an unincorporated association on behalf of the
association in accordance with the provisions of the general
associations law.
S 1026. Review of determinations by administrative officers of the
unified court system. In any action or proceeding brought to review a
determination of the chief judge of the court of appeals, of the court
of appeals or of the administrative board of the courts, made pursuant
to the provisions of article seven-A of the judiciary law or section
twenty-eight of article six of the constitution, the only proper party
to be named therein shall be the chief administrator of the courts, in
his representative capacity. No action or proceeding so instituted shall
name the chief judge, the court of appeals or any member thereof, or the
administrative board or any member thereof as a party.