NORTHERN FUNDING LLC v. 244 MADISON REALTY CORP (2007)

Order, Supreme Court, New York County (Herman Cahn, J.), entered January 17, 2007, which, in an action against a residential cooperative and its directors seeking, inter alia, to compel a transfer of shares appurtenant to an apartment, granted defendants' cross motion to add as necessary parties the Department of Finance of the State of New York and Emigrant Savings Bank, and denied plaintiffs' motion for a mandatory preliminary injunction with leave to renew after an amended complaint has been served and filed, unanimously modified, on the law, to deny that portion of the cross motion seeking to add Emigrant Savings Bank as a necessary party, and otherwise affirmed, without costs.

 The Department of Finance is a necessary party, there being issues of fact as to whether it has valid liens against the subject shares (CPLR 1001[a];  see Russell v. City of New York, 22 A.D.2d 706, 253 N.Y.S.2d 778 [1964], affd. 16 N.Y.2d 641, 261 N.Y.S.2d 79, 209 N.E.2d 119 [1965];   Costa v. Harris, 26 A.D.2d 933, 274 N.Y.S.2d 434 [1966] ).   However, the UCC statement submitted by plaintiffs demonstrates that the lien held by Emigrant Savings Bank has been satisfied, and we modify accordingly.   The mandatory preliminary injunction that plaintiffs seek would impermissibly grant them the ultimate relief sought, prior to the addition of a necessary party and joinder of issue (see St. Paul Fire & Mar. Ins. Co. v. York Claims Serv., 308 A.D.2d 347, 348-349, 765 N.Y.S.2d 573 [2003] ).   For present purposes, we note UCC 8-401(a)(4) (issuer of stock to register a transfer of stock if “any applicable law relating to the collection of taxes has been complied with”), but do not rule on its applicability.   We have considered plaintiffs' other arguments and find them unavailing.