Kelley v. Garuda
| Decision Date | 02 December 2020 |
| Docket Number | 2017–11420,Index No. 7016/04,2017–11421 |
| Citation | 189 A.D.3d 807,138 N.Y.S.3d 173 |
| Parties | Edward KELLEY, etc., et al., respondents, v. Aruna GARUDA, etc., et al., defendants, Nikhil Gupta, etc., appellant; Board of Trustees of the International Society for Krishna Consciousness, Inc., et al., nonparty-appellants. |
| Court | New York Supreme Court — Appellate Division |
G. Oliver Koppell, New York, N.Y. (Daniel F. Schreck of counsel), for appellant Nikhil Gupta, also known as Nimai Pandit Das.
Chittur Law Offices, P.C., Ossining, N.Y. (Krishnan S. Chittur of counsel), for nonparty-appellants.
La Reddola, Lester & Associates, LLP, Garden City, N.Y. (Steven M. Lester of counsel), for respondent Edward Kelley, also known as Adarsi Das, and Stepanovich Law, PLLC, Nanuet, N.Y. (John G. Stepanovich of counsel), for respondents International Society for Krishna Consciousness, Inc., and Governing Body Commission of the International Society for Krishna Consciousness (one brief filed).
ALAN D. SCHEINKMAN, P.J., RUTH C. BALKIN, JEFFREY A. COHEN, HECTOR D. LASALLE, JJ.
DECISION & ORDER
In an action to enjoin an alleged trespass and usurpation of corporate authority, and for a judgment declaring the rights and interests of the respective parties in the temple of the plaintiff International Society for Krishna Consciousness, Inc., in Freeport, the defendant Nikhil Gupta, also known as Nimai Pandit Das, appeals, and nonparties Board of Trustees of the International Society for Krishna Consciousness, Inc., Charles Lee, also known as Raja Vidya Das, Balarama Das, Braj Aggarwal, Madhusudan R.S., and David Sbordoni separately appeal, from (1) an order of the Supreme Court, Nassau County (Randy Sue Marber, J.), dated October 2, 2017, and (2) a judgment of the same court entered October 31, 2017. The order, after an inquest, inter alia, denied that branch of the motion of the defendant Nikhil Gupta, also known as Nimai Pandit Das, which was to vacate his default in answering the complaint. The judgment, upon the order, declared that possession of the subject temple be awarded to the plaintiffs and directed the issuance of a warrant of eviction.
ORDERED that one bill of costs is awarded to the defendant Nikhil Gupta, also known as Nimai Pandit Das.
As a threshold matter, nonparties Board of Trustees of the International Society for Krishna Consciousness, Inc., Charles Lee, also known as Raja Vidya Das, Balarama Das, Braj Aggarwal, Madhusudan R.S., and David Sbordoni (hereinafter collectively the nonparties), are not aggrieved by the order and the judgment, and lack standing to maintain these appeals (see CPLR 5511 ; Mixon v. TBV, Inc., 76 A.D.3d 144, 904 N.Y.S.2d 132 ). The nonparties did not move in the Supreme Court to intervene in this action, notwithstanding that they had notice thereof, and their respective interests in the temple of the plaintiff International Society for Krishna Consciousness, Inc. (hereinafter ISKCON), are adequately represented by the defendant Nikhil Gupta, also known as Nimai Pandit Das (hereinafter the defendant), the purported president and trustee of ISKCON (see Weiss v. Monaco, 245 A.D.2d 443, 443, 666 N.Y.S.2d 669 ; cf Auerbach v. Bennett, 64 A.D.2d 98, 408 N.Y.S.2d 83, mod on other grounds 47 N.Y.2d 619, 419 N.Y.S.2d 920, 393 N.E.2d 994 ). Accordingly, we dismiss the nonparties' appeals from the order and the judgment.
The defendant's appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on the defendant's appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1] ).
We disagree with the Supreme Court's determination to deny that branch of the defendant's motion which was to vacate his default in answering the complaint. " CPLR 320(a) provides that a defendant may appear in an action in one of three ways: (1) by serving an answer, (2) by serving a notice of appearance, or (3) making a motion which has the effect of extending the time to answer" ( Tsionis v. Eriora Corp., 123 A.D.3d 694, 695, 998 N.Y.S.2d 117 ; see Household Fin. Realty Corp. of N.Y. v. Adeosun–Ayegbusi, 156 A.D.3d 870, 871, 65 N.Y.S.3d 761 ; USF & G. v. Maggiore, 299 A.D.2d 341, 342, 749 N.Y.S.2d 555 ). Here, the defendant appeared in the action in May 2008, when he, among others, moved pursuant to CPLR 3211(a) to dismiss the complaint, which extended his time to serve an answer (see CPLR 320[a] ; 3211[f] ). Although the defendant did not serve an answer to the complaint following the denial of his motion, the record demonstrates that the defendant actively participated in the litigation during the ensuing years and that the plaintiffs never moved for leave to enter a default judgment...
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