Albert C. v. Joan C.

Apr 22, 1985
Versions:110 A.D.2d 803
488 N.Y.S.2d 188
1985 N.Y. App. Div. LEXIS 48708

*804What is at stake in the underlying action is the paternity of a 17-year-old child. Pursuant to CPLR 1001 (a), persons who might be inequitably affected by a judgment in an action should be made a party thereto. A child whose paternity is being refuted, as in the instant case, clearly constitutes such a person. Accordingly, a resolution of the issues raised by plaintiff’s action requires the joinder of his purported daughter so that all persons whose interests are affected will be before the court (see, Matter of Fellner v McMurray, 41 AD2d 853, 854). Upon remittitur, a guardian ad litem shall be appointed in accordance with CPLR 1202 in order to insure the protection of the child’s interests.

Although nonjoinder of a necessary party was not raised by anyone at Special Term, it may be raised on the court’s own motion at any stage of a case (see, Matter of Lezette v Board of Educ., 35 NY2d 272, 282; First Natl. Bank v Shuler, 153 NY 163, 170; Matter of Ozols v Henley, 81 AD2d 670, 671, appeal dismissed 54 NY2d 1023; Matter of Fellner v McMurray, supra; CPLR 1003; 2 Weinstein-Korn-Miller, NY Civ Prac, ¶ 1001.03).

In the present posture of this case, we pass upon no further issue. Gibbons, J. P., Weinstein, Brown and Eiber, JJ., concur.