BATAVIA CITY CENTRE MERCHANTS ASSOCIATION INC v. CITY OF BATAVIA (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law with costs, the motion is dismissed, and the declaration is vacated.

Memorandum:  Nonparty appellant RTMS Properties LLC appeals from a judgment that granted the motion of defendant-plaintiff City of Batavia (City) for, in effect, a declaration that a proposed settlement agreement was binding and enforceable against appellant notwithstanding appellant's refusal to approve such agreement.  We now reverse the judgment, dismiss the City's motion, and vacate the declaration.

Appellant is not and has never been a party to either of the instant actions between the City and plaintiff-defendant Batavia City Centre Merchants Association, Inc. Moreover, the City never filed a supplemental summons and amended verified complaint against appellant, nor did it obtain either leave of court or a proper stipulation to add appellant as a party.  Thus, the City's motion by order to show cause for a declaration against appellant was “ineffective either to join the appellant[ ] to [either] pending action or to commence a new action against [it]” (Monks v. Pandolfi, 274 A.D.2d 381, 381, 711 N.Y.S.2d 762 [2d Dept. 2000];  see CPLR 305[a];  CPLR 1003;  Crook v. E.I. du Pont de Nemours Co. [Appeal No. 2], 181 A.D.2d 1039, 1039–1040, 582 N.Y.S.2d 581 [4th Dept. 1992], affd for reasons stated 81 N.Y.2d 807, 595 N.Y.S.2d 388, 611 N.E.2d 289 [1993];  Benn v. Losquadro Ice Co., Inc., 65 A.D.3d 655, 656, 886 N.Y.S.2d 32 [2d Dept. 2009] ).

Contrary to the City's contention, the record is devoid of any evidence that appellant ever engaged in settlement negotiations on its own behalf in connection with either action.  In any event, even had appellant engaged in settlement negotiations, such efforts would not have constituted an appearance that would have waived any waivable jurisdictional objections to the City's improper method of seeking relief against appellant (see R.L.C. Invs. v. Zabski, 109 A.D.2d 1053, 1053, 487 N.Y.S.2d 201 [4th Dept. 1985] ).