One of the best known provisions in our procedural rules is the motion to dismiss statute, Rule 3211(a) of New York Civil Practice Law and Rules (“CPLR”).  It has eleven categorized subdivisions of defenses under which defendants may move to dismiss complaints in lieu of an answer.  If we play the game of “Which Doesn’t Look Like the Other,” all of the eleven subdivisions permit a court to grant the outright dismissal of complaints except for one --- Rule 3211(a)(10) of the CPLR (“CPLR 3211(a)(10)”), which regards the plaintiff’s alleged failure to name a necessary party in the action.

CPLR 3211(a)(10) is governed by unique standards and burdens of proof.  The specific statutory language addresses whether “the court should not proceed in the absence of a person who should be a party.”  The statute cannot be understood without also taking into account Section 1001 of the CPLR (“CPLR 1001”).  A necessary party is defined in CPLR 1001(a) as “[p]ersons who ought to be parties if complete relief is to be accorded between the persons who are [already] parties or who might be inequitably affected by a judgment in the action.”    

The court’s decision on a dismissal motion for the absence of a necessary party is not a simple grant or deny.  The court, in deciding a CPLR 3211(a)(10) motion, must engage in a singularly unique three-step analysis.  The first step of the analysis is to determine whether a particular non-party is, in fact, “necessary” for compete relief to be accorded in the action.  If the non-party is not necessary, the court’s analysis ends and the defendant’s CPLR 3211(a)(10) motion should be denied (U.S. Bank Trust, N.A. v. Gaines, 189 A.D.3d 1312 [N.Y. App. Div., 2d Dep’t 2020]).

If the court determines that the non-party is necessary as defined by CPLR 1001(a), it must then examine whether the non-party is subject to the jurisdiction of the court.  If a necessary non-party is subject to the court’s general or specific jurisdiction, the defendant’s CPLR 3211(a)(10) motion will be denied in favor of having the non-party “summoned” into the case (Deutsche Bank National Trust Company v. Bandalos, 173 A.D.3d 1136 [N.Y. App. Div., 2d Dep’t 2019]).  Indeed, CPLR 1001(b) provides that any such non-party subject to the court’s jurisdiction “shall” be summoned, which has the effect of shutting down any notion of dismissing the action for the absence of the necessary party.  In other words, CPLR 3211(a)(10) and 1001(b) are designed to preserve actions and avoid dismissals, if the absence of the necessary party can be cured by bringing that party into the case.  But CPLR 1001(b) does not circumvent the protections afforded to necessary parties by the statute of limitations (Matter of Mount Pleasant Cottage School Union Free School Dist. v. Sobol, 163 A.D.2d 715 [N.Y. App. Div., 3d Dep’t 1990]).

If the necessary party is not subject to the jurisdiction of the court and cannot be summoned into the court, CPLR 1001(b) provides the court with a binary choice:  it may deny the dismissal motion and allow the action to proceed without the necessary party, or it may dismiss the action because of the necessary party’s absence.  In making that determination, CPLR 1001(b) requires the court to consider five factors; namely, 1) whether the plaintiff has another effective remedy if the action is dismissed, 2) the degree of prejudice to the defendant or the non-party, 3) whether prejudice may now or in the future be avoided, 4) the feasibility of a protective order or judgment to mitigate the necessary party’s absence, and 5) whether an effective judgment may be rendered in the absence of the necessary party.  No single factor is determinative (Red Hook/Gowanus Chamber of Commerce v. New York City Bd. of Standards and Appeals, 5 N.Y.3d 452 [2005]).  A dismissal of the action is to be a last resort (JP Morgan Chase, National Association v. Salvage, 171 A.D.3d 438 [N.Y. App. Div., 1st Dep’t 2019]).

The foregoing demonstrates that defendants may only obtain an action’s dismissal for the absence of a necessary party if all of three requirements are first established --- that the non-party is truly “necessary,” that it not be subject to the jurisdiction of the court, and that upon the balancing of factors the action should not proceed anyway without the necessary party.  These burdens and hurdles significantly limit the number of instances where the dismissal of complaints under CPLR 3211(a)(10) are actually granted. 

The absence of a necessary party is not among the defined affirmative defenses that are waived if not timely asserted in an answer or in a CPLR 3211(a) dismissal motion.  Indeed, CPLR 3211(e) provides that the necessary party defense may be raised “at any time or in a later pleading, if permitted, or even by the court at its own initiative” (Migliore v. Manzo, 28 A.D.3d 620 [N.Y. App. Div., 2d Dep’t 2006]).  

If there are two parallel actions commenced by the same plaintiff against two separate defendants, involving the same occurrence with common questions of fact and law, a joinder of the actions under Section 602(a) of the CPLR may cure the absence of one defendant as a necessary party in the other action (Ashwood v. Uber USA, LLC, 219 A.D.3d 1289 [N.Y. App. Div., 2d Dep’t 2023]).  This also underscores how necessary party dismissals are truly a last resort for the courts. 

The dismissal motion under CPLR 3211(a)(10) is a zebra among horses, similar but different.  Its standards and considerations are unique. 

Hon. Mark C. Dillon is a Justice of the Appellate Division, Second Department, an Adjunct Professor of New York Practice at Fordham Law School, and a contributing author of CPLR Practice Commentaries in McKinney’s.