Opinion
2013-05-7
Franklin OLEH, Sr., etc., et al., Plaintiffs–Respondents, v. ANLOVI CORPORATION, et al., Defendants–Appellants.
Rappaport, Hertz, Cherson & Rosenthal, P.C., Forest Hills (Milan Dey–Chao and Jeffrey M. Steinitz of counsel), for appellants. Elliot H. Fuld, Bronx, for respondents.
Rappaport, Hertz, Cherson & Rosenthal, P.C., Forest Hills (Milan Dey–Chao and Jeffrey M. Steinitz of counsel), for appellants. Elliot H. Fuld, Bronx, for respondents.
FRIEDMAN, J.P., ACOSTA, MOSKOWITZ, MANZANET–DANIELS, CLARK, JJ.
Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered on or about June 1, 2011, which, to the extent appealed from, granted plaintiffs' cross motion to amend the complaint to add as a defendant the Estate of Anthony Viaer as sole shareholder of Anlovi Corporation, unanimously affirmed, without costs.
Plaintiff Franklin Oleh, Sr.'s two infant sons allegedly sustained personal injuries as a result of a dangerous condition in the apartment where they lived, in a building then owned by defendant Anlovi Corporation. In 2009, plaintiffs commenced this action against Anlovi, and obtained a default judgment against it. After this action was commenced, Anlovi's sole shareholder, Anthony Viaer, authorized the sale of the building, which was Anlovi's only asset. Viaer died shortly thereafter, and it is undisputed that Viaer's estate now controls proceeds of that sale. Subsequently, Anlovi's insurer disclaimed coverage on the ground that Anlovi failed to provide timely notice of plaintiffs' claim.
Supreme Court providently exercised its discretion in granting plaintiffs' cross motion to add the estate as a defendant, since the proposed amendment is not palpably improper or clearly lacking merit (CPLR 3025[b] ). The estate is a necessary party to this action because it controls the proceeds of the sale. Further, if the estate is not a party, plaintiffs cannot be accorded “complete relief” (CPLR 1001[a] ), because the sale of Anlovi's assets has rendered it insolvent ( see Ed Moore Adv. Agency v. Shapiro, 124 A.D.2d 696, 696–697, 508 N.Y.S.2d 208 [2d Dept. 1986] ). The estate's rights to Anlovi's assets may also “be inequitably affected by” plaintiffs' default judgment against Anlovi ( Genger v. Genger, 87 A.D.3d 871, 874, 929 N.Y.S.2d 232 [1st Dept. 2011]; see Swezey v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 87 A.D.3d 119, 128–130, 926 N.Y.S.2d 415 [1st Dept. 2011], affd. 19 N.Y.3d 543, 950 N.Y.S.2d 293, 973 N.E.2d 703 [2012] ).
We have considered defendants' remaining contentions and find them unavailing.