Parties

• Author: Michael H. Barr/Burton N. Lipshie/Sharon Stern Gerstman
• Pages: 481-564

Chapter 14

PARTIES

QUICK VIEW

Definitions:

• Party: Parties to a lawsuit are the persons or entities who are suing or being sued in the action. Only

the parties are entitled to participate directly in the proceedings.

• Standing to Sue: To assert a legal claim, a person or entity must have standing to do so, i.e., a

sufficient stake in the outcome of the claim.

• Joinder: The addition of parties to a lawsuit, either when the action is filed or later, is called joinder.

Joinder may be either necessary or permissive.

• Interpleader: In an Interpleader action, two or more adverse claimants to a particular item of property

(the “stake”) contest the right to property held by a stakeholder, who acknowledges that one of the

claimants is entitled to the property. The purpose of the action is to determine who is entitled to

receive the stake.

• Third-Party Practice (Impleader): In a third-party (or “impleader”) action, a defendant brings a

new party into the action, usually alleging that the new party is liable to defendant for all or part of

plaintiff’s claim against the impleading defendant.

Scope of Chapter: Capacity to sue, be sued, or defend. Standing to sue. Special parties (infants and incompetents;

business entities; unknown defendants). Joinder of parties (necessary and permissive). Substitution of parties.

Interpleader actions. Intervention in an action. Third-party practice. Class actions.

Strategies and Tactics:

• Early in the case, evaluate who might be possible plaintiffs and possible defendants in the action.

• Research the law concerning the capacity of potential parties, their standing to sue or be sued, etc.

• Investigate the status of various parties, their capacity, standing, etc., and whether they are amenable to

service of process in New York.

• If representing a defendant, investigate whether there are other parties who should be joined as

defendants, and whether there are other parties who may be responsible for all or part of plaintiff’s

claim.

• If an action is already proceeding, determine whether it is in your client’s interest to intervene in the

action, and whether your client is entitled to do so.

• If you represent a client who retains property to which some other party is ultimately entitled,

determine whether an interpleader action, with your client as stakeholder, is an appropriate way for

your client to discharge his/her obligations.

Statutes and Rules: CPLR Article 10, Parties Generally; CPLR Article 12, Infants and Incompetents; CPLR

Article 6, Joinder of claims and consolidation and severance of actions; CPLR Article 9, Class actions.

NEW YORK CIVIL PRACTICE BEFORE TRIAL 14-2

Related Topics: Pleadings, Ch 15; Motion Practice, Ch 16; Taking the Case, Ch 1; Presuit Activities, Ch 2;

Personal Jurisdiction, Ch 7; Summons, Service of Process, and Appearance, Ch 9.

Forms: See digital access for the following forms:

• Form 14:10, Stipulation to Add Defendants and Amend Caption.

• Form 14:20, Notice of Motion to Add Defendants and Amend Caption.

• Form 14:30, Affirmation in Support of Motion to Add Defendants and Amend Caption.

• Form 14:40, Stipulation to Substitute Defendant and Amend Caption.

• Form 14:50, Caption (Third-Party Complaint).

• Form 14:60, Third-Party Complaint.

• Form 9:20, Third-Party Summons.

TABLE OF CONTENTS

I. General Points

§14:01 “Party” Defined

§14:02 Typical Parties

II. Capacity to Sue, Be Sued, or Defend

A. Corporations

1. DOMESTIC AND AUTHORIZED FOREIGN CORPORATIONS

§14:10 Domestic Corporations

§14:11 Authorized Foreign Corporations

§14:12 Foreign Corporation Not Doing Business in NY

2. UNAUTHORIZED FOREIGN CORPORATIONS

§14:20 May Not Sue if Doing Business in NY

§14:21 What Is “Doing Business”?

§14:22 Capacity to Defend

§14:23 Becoming Authorized Before Suing

B. Partners and Partnership

§14:30 May Sue or Be Sued in Name of Partnership

§14:31 Dissolved Partnership

C. Other Types of Persons or Entities

§14:40 Unincorporated Associations

§14:41 Estates

§14:42 Infants and Persons Requiring Guardian

§14:43 Unlicensed Contractors

D. Challenging Capacity

§14:50 Dismissal if Plaintiff Lacks Capacity

§14:51 If Defendant Lacks Capacity

III. Standing to Sue

§14:60 Nature of Requirement

§14:61 Challenge Lack of Standing by Motion to Dismiss or in the Answer

§14:62 Compare: Capacity to Sue

14-3 PARTIES

§14:63 Claims Challenging Government Conduct

IV. Suing or Defending Special Parties

A. Infants and Incompetents

1. GENERAL POINTS

§14:70 Personal Representative Required

§14:71 Definitions

2. REPRESENTATION

a. Proper Representatives

§14:80 For Infants

§14:81 For Incompetents

§14:82 For “Incapable” Adults

b. Failure to Appear by Proper Representative

§14:90 Infant: Stay Pending Appointment

§14:91 When Infant Reaches Majority

§14:92 Incompetent; Court Determination of Competency Required

§14:93 Judgment Against Infant or Incompetent

§14:94 Judgment in Favor of Infant or Incompetent

§14:95 Service on Infant or Incompetent

3. APPOINTMENT OF GUARDIAN AD LITEM

§14:100 On Court’s Own Initiative

§14:101 Persons Allowed to Move for Appointment

§14:102 Timing of Motion

§14:103 Who Must Be Served with Notice

§14:104 Consent of Proposed Guardian

§14:105 Compensation

4. DEFAULT JUDGMENT AND ARBITRATION

§14:110 Representation Required for Entry of Default

§14:111 Arbitration: Court Order Required

5. HOW TO SETTLE WARD’S CLAIM

a. Obtaining Court Approval

§14:120 Court Approval Required

§14:121 If Action Pending, By Motion

§14:122 If No Action Pending, By Petition

§14:123 In County Court (if Necessary)

§14:124 Who Must Appear at Hearing

§14:125 Order or Judgment

§14:126 Disbursing Proceeds

b. Notice and Supporting Papers

§14:140 Notice

§14:141 Supporting Papers

§14:142 Papers May Be Prepared by Opposing Party

§14:143 Representative’s Affidavit