| Augur v Augur |
| 2011 NY Slip Op 01564 [82 AD3d 1342] |
| March 3, 2011 |
| Appellate Division, Third Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Charles Augur, Appellant, v Raymond Augur, Respondent, et al., Defendant. |
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Parshall & West, Worcester (Marvin D. Parshall of counsel), for respondent.
Egan Jr., J. Appeal from an order of the Supreme Court (Coccoma, J.), entered July 1, 2010 in Otsego County, which, among other things, granted a motion by defendant Raymond Augur for summary judgment dismissing the complaint against him.
Plaintiff commenced this action against defendant Raymond Auger (hereinafter defendant), his father, to impose a constructive trust on certain real property owned by his parents. Upon defendant's motion for summary judgment, Supreme Court, sua sponte, deemed defendant's mother a necessary party given the undisputed fact that the property at issue was owned by plaintiff's parents as tenants by the entirety. The court added the mother as a party to the action and proceeded, by the same order, to grant summary judgment dismissing the complaint.
Plaintiff served defendant with the notice of appeal, but not the mother, who apparently is estranged from defendant. CPLR 5515 (1) requires that a notice of appeal be served upon the [*2]adverse parties.[FN1] Given the lack of compliance with the statute with regard to service (see CPLR 5515 [1])[FN2] and the potential for prejudice, the appeal must be dismissed.
Rose, Kavanagh and McCarthy, JJ., concur; Cardona, P.J., not taking part. Ordered that the appeal is dismissed, without costs.