Opinion
November 2, 1972
Appeal from the Monroe Trial Term.
Present — Goldman, P.J., Marsh, Gabrielli and Moule, JJ. [ 69 Misc.2d 606.]
Judgment unamiously affirmed, with costs. Memorandum: In this action for specific performance for alleged breach of an agreement to assume and pay the debts of another the appellant contends for the first time on appeal that the two creditors on whose behalf respondent brought this suit were necessary parties and that their nonjoinder required dismissal of the complaint. CPLR 1001 requires joinder of all parties "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". (CPLR 1001, subd. [a].) It is possible that the rights of the creditors might have been inequitably affected by a judgment in the action. However, at this appellate stage it clearly appears that the judgment appealed from neither inequitably nor adversely affects the rights of either creditor. Appellant was ordered to perform his contractual obligation to pay the creditors in an amount determined by the court based on the trial testimony of representatives of each creditor and the exhibits before it in this proceeding. The issue of joinder was never raised by motion, by appellant's answer, or at trial. "Delay in raising the issue may be considered by the court as one element of 'prejudice' in determining whether to order dismissal. See CPLR 1001 (b) (2)." (2 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 1003.05.) Therefore, since the necessary parties were not adversely or inequitably affected by the judgment, and since the delay of the appellant in raising this issue deprived the trial court and the respondent of the opportunity of achieving joinder or of developing other procedural alternatives to dismissal, the complaint should not be dismissed for failure to join the creditors in the action.