OAKLEY v. Hoosick Valley Contractors, Inc., Respondent. (2007)

Appeal from an order of the Supreme Court (Lalor, J.), entered August 11, 2006 in Greene County, which granted a motion by defendant Hoosick Valley Contractors, Inc. to stay arbitration between it and, among others, defendant Albany Medical Center.

Plaintiff was injured in the course of his employment with Tri-Valley Plumbing & Heating, a subcontractor on a hospital construction project.   He thereafter commenced the instant action against the hospital, as well as the general contractor on the project.   Several months later, the hospital filed a demand for arbitration seeking to arbitrate the issue of indemnification by the general contractor and/or Tri-Valley.   In the course of this action, the general contractor, on behalf of itself and Tri-Valley, moved to stay that arbitration.   The hospital cross-moved to compel it.   Supreme Court issued an order which stayed arbitration.   As correctly argued by the hospital, this was error with respect to Tri-Valley.

 “A court has no power to grant relief against an entity not named as a party and not properly summoned before the court” (Riverside Capital Advisors v. First Secured Capital Corp., 28 A.D.3d 457, 460, 814 N.Y.S.2d 646 [2006] [citations omitted];  see Hartloff v. Hartloff, 296 A.D.2d 849, 850, 745 N.Y.S.2d 363 [2002];  Blake v. LP 591 Ocean Realty, 237 A.D.2d 554, 655 N.Y.S.2d 635 [1997] ).   There is no dispute that Tri-Valley has not been named in this action nor was it summoned before Supreme Court.   This being the case, Supreme Court should not have ordered relief on the parties' respective motions as against Tri-Valley as the court did not have jurisdiction over that entity (see Matter of Salvaggio [McEwen-National School Bus Serv.], 247 A.D.2d 875, 876, 668 N.Y.S.2d 523 [1998];  Blake v. LP 591 Ocean Realty, supra;  Matter of Montgomery v. Muller, 176 A.D.2d 29, 33, 580 N.Y.S.2d 110 [1992], lv. denied 80 N.Y.2d 751, 587 N.Y.S.2d 287, 599 N.E.2d 691 [1992];  Surdam v. Vance, 160 A.D.2d 1142, 1143-1144, 554 N.Y.S.2d 349 [1990];  compare Matter of Eagle Ins. Co. [Villegas-State Farm Mut. Auto. Ins. Co.], 307 A.D.2d 879, 880, 764 N.Y.S.2d 15 [2003];  Matter of American Tr. Ins. Co. [Carillo], 307 A.D.2d 220, 221, 763 N.Y.S.2d 561 [2003];  Matter of Liberty Mut. Ins. Co. [Markovitch-Eagle Fuel Transp.-AIU Ins. Co.], 214 A.D.2d 734, 735, 625 N.Y.S.2d 619 [1995];  Matter of Allstate Ins. Co. v. Perez, 157 A.D.2d 521, 523, 549 N.Y.S.2d 713 [1990];  Matter of American Sec. Ins. Co. v. Stanley, 86 A.D.2d 834, 835, 447 N.Y.S.2d 462 [1982] ).

ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as stayed arbitration with respect to Tri-Valley Plumbing & Heating, and, as so modified, affirmed.

CARPINELLO, J.

CARDONA, P.J., PETERS, SPAIN and KANE, JJ., concur.