Parties
Author | Michael H. Barr/Burton N. Lipshie/Sharon Stern Gerstman |
Pages | 473-554 |
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 suffi-
cient 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 prop-
erty (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 plain-
tiff’s claim against the impleading defendant.
Scope of Chapter: Capacity to sue, be sued, or defend. Standing to sue. Special parties (infants and incom-
petents; 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 defen-
dants, 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, deter-
mine 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.
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.
New York Civil PraCtiCe Before trial 14-2
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
§14:63 Claims Challenging Government Conduct
14-3 Parties
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
§14:144 Attorney’s Affidavit
§14:145 Medical or Hospital Report
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