NOWITZ v. NOWITZ (2007)

In an action, inter alia, to rescind a trust agreement and a deed on the ground of fraud, the defendant appeals from a judgment of the Supreme Court, Queens County (Rosengarten, J.), dated January 12, 2005, which, upon a jury verdict, is in favor of the plaintiff and against him, among other things, rescinding the trust agreement and the deed.   Justice Lifson has been substituted for former Justice Luciano (see 22 NYCRR 670.1[c] ).

ORDERED that the matter is remitted to the Supreme Court, Queens County, to hear and report in accordance herewith, and the appeal is held in abeyance in the interim.   The Supreme Court is directed to file its report with all convenient speed.

 The plaintiff sought to rescind an irrevocable trust agreement without the consent of the trustee.   Pursuant to CPLR 1001(a), persons who might be inequitably affected by a judgment in an action should be made a party thereto.   Remainderpersons or beneficiaries of a trust constitute indispensable persons (see McKnight v. Bank of N.Y., 254 N.Y. 417, 421, 173 N.E. 568;  Saratoga County Chamber of Commerce v. Pataki, 100 N.Y.2d 801, 819, 766 N.Y.S.2d 654, 798 N.E.2d 1047, cert. denied 540 U.S. 1017, 124 S.Ct. 570, 157 L.Ed.2d 430).

 In the instant case, the remainderpersons have not been joined.   Although the defendant did not raise the argument based on CPLR 1001(a) before the trial court, “[t]he absence of a necessary party may be raised at any stage of the proceedings, by any party or by the court on its own motion” (Migliore v. Manzo, 28 A.D.3d 620, 621, 813 N.Y.S.2d 762;  see Solomon v. Solomon, 136 A.D.2d 697, 523 N.Y.S.2d 900).

The Supreme Court did not take any testimony or consider any evidence on this issue.   Therefore, we cannot determine from the record before us whether or not it was appropriate to proceed in the absence of the aforementioned remainderpersons or beneficiaries;  whether or not they can or should be joined;  and what is the appropriate remedy in the event that they cannot be joined (see CPLR 1001[b] ).  Accordingly, we remit this matter to the Supreme Court, Queens County, to hear and report on these issues (see Matter of Red Hook/Gowanus Chamber of Commerce v. New York City Bd. of Stds. & Appeals, 5 N.Y.3d 452, 459-461, 805 N.Y.S.2d 525, 839 N.E.2d 878).   The appeal will be held in abeyance pending receipt of the Supreme Court's report.