The following papers read on this motion:Notice of Motion and Affidavits XMemorandum of Law in Support of Motion XAffirmation in Opposition XMemorandum of Law in Support of Opposition XReply Affirmation XMemorandum of Law in Support of Reply XRELIEF REQUESTED The defendants move for an order, pursuant to CPLR §§3211(a)1, (a) (7), (a)(10), CPLR 1001 and 1003, CPLR 3016(b) and General Business Law, (GBL) §777-a(4)(a), dismissing the plaintiffs’ complaint. The defendants submit a Memorandum of Law in support of the motion. The plaintiffs submit opposition and a Memorandum of Law in support of the opposition. The defendants submit a reply and Memorandum in support of the reply.BACKGROUNDThe plaintiffs, by way of complaint, allege that they were individuals, residing at, and owners of, 2 Quaker Ridge Drive, Brookville, County of Nassau, State of New York, who entered into a Residential Contract of Sale with the defendants, whereby the defendants conveyed title to the subject premises to the plaintiffs for the purchase price of $5,400,000.00. The plaintiffs allege that the defendant, Randeep Johar, (hereinafter referred to as “Ms. Johar”), was and is a New York licensed architect, and an engineer or designer in the construction of buildings and homes. The plaintiffs claim that paragraph 30 of the Rider to the Contract obligated the defendants after closing for any conditions of which the defendants were aware of that could serve as a claim against the builder of the premises. The plaintiffs claim that the defendant, Ms. Johar, represented to the plaintiffs that she designed the construction drawings for the premises, directed and acted as the construction manager for the construction of the premises, and entered into an agreement with the builder, Accent Associates Inc., (hereinafter referred to as “Accent”), a non-party to this action, for the construction of the premises.The plaintiffs allege that Ms. Johar controlled the construction of the premises. The plaintiffs claim that after they took possession of the premises, they found material defects purposely concealed by the defendants “in conjunction with their builder [Accent].” More specifically, the complaint alleges the construction of the patios were non-conforming to the drawings which were standard and acceptable construction practice, in that the “actual” construction was not in conformance with the “actual” drawings, but rather, the footings which were represented in the drawings, were not constructed in accordance with the drawings, and later allege that footings were not constructed at all. The plaintiffs claim that it was only after the plaintiffs took possession and the house began to sink, that the plaintiffs hired their own contractor to lift the patio slabs by means of heavy construction equipment, and at that point, the lack of footings underneath the patios was revealed. As a matter of fact, the complaint alleges that once the “[p]laintiffs’ contractor uplifted one of the [p]atios [it] revealed that no [f]ootings existed, ” and a representative on behalf of Accent claimed that nothing was wrong. The plaintiffs maintain that the lack of footings underneath the patios was a defect that was concealed, that constructing the patios without footings ensured that all four patios were doomed to fail, as a result, all four patios had to be removed and replaced, necessitating the redesign of the rear yard. Additionally, plaintiffs claim that the defendants’ installment of the boiler was illegal.The complaint alleges that the Ms. Johar represented to the plaintiffs that she had custom designed the premises to be her family residence, was selling it because of business issues involving her husband’s dental practice, however, the plaintiffs later learned that the defendants were engaged in “house flipping” by purchasing properties and selling or “flipping” to new buyers. The plaintiffs claim that Ms. Johar directed her builder [Accent] to cut corners to increase the defendants’ profit margin when the premises “flipped.”The plaintiffs’ complaint states five causes of action sounding in fraud and active fraud concealment, negligence, Deceptive Practices under New York General Business Law §349, breach of implied warranty, and breach of contract.DISCUSSIONOne of the arguments set forth by the defendants, with respect to the instant motion seeking to dismiss the plaintiffs’ complaint, is that the plaintiffs have failed to join a necessary party whom without, full relief cannot be granted pursuant to CPLR §§1001 and 1003, and for this reason alone, the complaint should be dismissed. This court agrees. The necessary party is Accent, the builder.CPLR §3211(a)(10) provides that a party may move for judgment dismissing one or more causes of action asserted against him on the ground that the court should not proceed in the absence of a person who should be joined.The Court of Appeals in Sweezy v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 19 NY3d 543, stated as follows:“CPLR 1001(a) states that an individual or entity is a necessary party to litigation ‘if complete relief is to be accorded between the persons who are parties to the action’ or if the entity ‘might be inequitably affected by a judgment in the action.’ Joinder is mandatory if the nonparty is subject to the court’s jurisdiction (see CPLR 1001[b]). If jurisdiction can be obtained only by the entity’s consent or voluntary appearance — as in the situation where a sovereign nation invokes its right to immunity — ‘the court, when justice requires, may allow the action to proceed without [the entity] being made a party.’ (Id.) Five factors must be considered in reaching a determination: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; and5. whether an effective judgment may be rendered in the absence of the person who is not joined.” (Id.)Although a court must consider all five criteria, no single factor is determinative in a discretionary analysis of whether an action may proceed in the absence of a necessary party who is not subject to mandatory jurisdiction.”The Court in Sweezy. supra, stated that the overall statutory design was intended to guarantee that absent parties would not be embarrassed by judgments purporting to bind their interests where they have not had an opportunity to be heard, and to protect against multiple lawsuits and inconsistent judgments. “Rule requiring joinder of necessary parties serves judicial economy by preventing multiplicity of suits, and insures fairness to third parties who ought not to be prejudiced or embarrassed by judgments purporting to bind their rights or interest where they have had no opportunity to be heard. (Incorporated Vil. of Atl. Beach v. Pebble Cove Homeowner’s Assn., 139 AD2d 627).Here, the instant complaint alleges several allegations against the builder, Accent, a non-party, who would not have an opportunity to be heard, whereby joinder of this necessary party would not only serve judicial economy, but would prevent potential prejudice against all parties herein which can be avoided.CONCLUSIONUpon the foregoing, it is herebyORDERED that branch of the defendants’ motion seeking to dismiss the plaintiff’s complaint pursuant to CPLR §§3211(a)(10), 1001 and 1003, failure to join a necessary party, is granted, and it is herebyORDERED that in light of the foregoing, this court need not address the remaining contentions of the defendants.ENTER:Dated: April 11, 2018
