Opinion
No. 17535/09.
2010-08-20
COUNTY OF NASSAU, Plaintiff, v. Jon BUISSERETH, Defendant.
Timothy Wan, Esq., for Plaintiff. Giovanni Rosania, Esq., for Defendant.
Timothy Wan, Esq., for Plaintiff. Giovanni Rosania, Esq., for Defendant.
F. DANA WINSLOW, J.
In this civil forfeiture action, defendant JON BUISSERETH (“Defendant” or “JON”) seeks to dismiss the complaint pursuant to CPLR § 3211(a)(10) and CPLR § 1003 for failure to join a necessary party; namely his wife Vanessa Buissereth (“Vanessa”).
The relevant facts are undisputed. On or about June 9, 2009, at 1100 Peterhoff Street, Apartment No.10A in Valley Stream, New York (the “Premises”), in the course of a search of the premises, the Nassau County Police Department recovered drug paraphernalia, a .32 caliber gun, cocaine residue, and U.S. Currency in the sum of $34,841.00 (the “Currency”). Defendant was charged with Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law § 220.03). The criminal action against the Defendant is currently pending in Nassau County District Court. Vanessa was charged with possession of a weapon. Vanessa pled guilty to Disorderly Conduct (Penal Law § 240.20), which is a violation, not a crime.
On or about August 28, 2009, the County of Nassau (“Plaintiff” or the “County”), commenced this action seeking civil forfeiture of the Currency pursuant to Section 8–7.0(g)(3) of the Nassau County Administrative Code (“NCAC”). Defendant now seeks to dismiss the action pursuant to CPLR § 3211(a)(10) and CPLR § 1003 on the ground that the action should not proceed in the absence of Vanessa, who is a necessary party by virtue of her interest in the Currency. Both JON and Vanessa have submitted affidavits stating that the Currency was marital property that was derived from Vanessa's inheritance from her father's estate. The County does not dispute that Vanessa has an interest in the Currency. Rather, the County argues that “Ms. Buissereth herein is not necessarily a necessary party to the action, but a material witness” and that “[t]he Court could hold a hearing, akin to a turnover hearing ... to determine the chain of ownership of funds.” Affirmation in Opposition, ¶¶ 9, 10.
Necessary parties include those who “might be inequitably affected by a judgment in the action.” CPLR § 1001(a). “A principal reason for compulsory joinder of parties is to protect nonparties whose rights should not be jeopardized if they have a material interest in the subject matter.” Hitchcock v. Boyack, 256 A.D.2d 842, 844 (internal quotations omitted).
In this case, it is undisputed that Vanessa has a material interest in the Currency and that her rights could be affected by a judgment of forfeiture. Accordingly, she is a necessary party who should be joined as a defendant. SeeCPLR § 1001(a). Although non-joinder of a party who should be joined under CPLR § 1001(a) is grounds for dismissal pursuant to CPLR § 1003, the Court must first consider whether or not the necessary party can be joined and dismissal avoided. SeeCPLR § 1001(a),(b); Matter of Red Hook/Gowanus Chamber of Commerce v. New York City Bd of Standards and Appeals, 5 NY3d 452, 459;Romeo v. N.Y. State Dep't of Education, 41 AD3d 1102. “If an absentee who is necessary to the action is subject to the court's jurisdiction, that absentee must be joined; if the absentee is not subject to jurisdiction, the court must consider several factors to determine whether the action should be dismissed or should proceed in the absence of the necessary party”. Romeo, 41 AD3d at 1104.
Defendant asserts that the proceeding must be dismissed because Vanessa cannot be joined at this time. Defendant argues that, insofar as the 120–day statute of limitations has expired [ see NCAC § 8–7.0(g)(5) ], the Court cannot obtain jurisdiction over Vanessa.
The Court disagrees. Lapse of the statute of limitations is not a bar to the joinder of a necessary party pursuant to CPLR § 1001. See 37 West Realty Co. v. New York City Loft Bd., 72 AD3d 406. In the past, New York courts and commentators have assumed that the practical inability to join a necessary party due to the expiration of the statute of limitations was equivalent to the party being beyond the court's jurisdiction. The Court of Appeals had left the issue open, proceeding directly to a discretionary determination pursuant to CPLR § 1001(b) as to whether or not the action could continue without the necessary party. See Red Hook, 5 NY3d at 459. In 2008, however, the Court of Appeals resolved the matter, concluding that an expired statute of limitations was not the equivalent of a jurisdictional defect. Windy Ridge Farm v. Assessor of the Town of Shandaken, 11 NY3d 725. “[A] statute of limitations does not deprive a court of jurisdiction nor even a litigant of a substantive right, but is merely a defense which may, if properly asserted, deprive a plaintiff of any remedy from a defendant.” Windy Ridge, 11 NY3d at 727,quoting Romeo, 41 AD3d at 1104. In most cases, even if the statute of limitations has expired, the court is required to join the necessary parties and remit for further proceedings. Id.
Accordingly, so long as jurisdiction is properly acquired, Vanessa may be joined as a defendant, without prejudice to her right to assert a statute of limitations defense. See 37 West Realty Co., 72 AD3d 406. At this juncture, it is not necessary for the Court to consider whether the doctrine of “relation back” would defeat this defense, or whether the action might nonetheless proceed in Vanessa's absence upon application of the (5) factors enumerated in CPLR § 1001(b).
Based upon the foregoing, it is
ORDERED, that the defendant's motion to dismiss pursuant to CPLR § 3211(a)(10) and CPLR § 1003 is denied. It is further
ORDERED, that Vanessa is hereby added as a necessary party defendant, provided that plaintiff obtains jurisdiction over her pursuant to CPLR Article 3 by service of a supplemental summons and amended complaint, together with a copy of this Order and all papers upon which it is based, within twenty (20) days after entry. It is further
ORDERED, that Plaintiff shall serve a copy of the supplemental summons and amended complaint, together with a copy of this Order, upon JON in the same manner as permitted for service of motion papers. It is further
ORDERED, that Vanessa shall file and serve an answer to the amended complaint within thirty (30) days following completion of the above-described service.
This constitutes the Order of the Court.