BHOLA v. Damian Mark, et al., nonparty-appellants. (2006)

Supreme Court, Appellate Division, Second Department, New York.

Linda BHOLA, respondent, v. Marietta SMALL, etc., defendant; Damian Mark, et al., nonparty-appellants.

Decided: July 11, 2006

HOWARD MILLER, J.P., DANIEL F. LUCIANO, ROBERT A. SPOLZINO, and MARK C. DILLON, JJ.

Bernstein & Bernstein, LLP, New York, N.Y. (Michael J. Collesano of counsel), for nonparty-appellants. Goldfarb & Goldfarb, Brooklyn, N.Y. (Thierry Ormejuste of counsel), for respondent.

In an action for the partition and sale of real property, Damian Mark, Jeff Mark, and Hillary Mark appeal from an order of the Supreme Court, Kings County (Bayne, J.), dated August 31, 2005, which denied their motion, inter alia, pursuant to CPLR 5015(a)(4) to vacate a prior order of the same court (Shaw, J.) dated August 5, 1996, granting the plaintiff's motion for summary judgment and an accounting.

ORDERED that the order is affirmed, with costs.

Given that the administrator of the decedent's estate was named in this action, the failure to join the appellants did not deprive the Supreme Court of jurisdiction (see CPLR 1004; see generally CPLR 1001, Real Property Actions and Proceedings Law § 903). Accordingly, the Supreme Court properly denied that branch of the appellants' motion which was to vacate the order dated August 5, 1996, pursuant to CPLR 5015(a)(4).

The appellants' remaining contentions either are without merit or academic.

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