YADEGAR v. INTERNATIONAL FOOD MARKET

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the motion which was to dismiss the supplemental summons and amended complaint insofar as asserted against the appellants is granted, and the action against the remaining defendants is severed.

With respect to joinder, CPLR 1003 provides in pertinent part that "[p]arties may be added at any stage of the action by leave of court or by stipulation of all parties who have appeared" ( see Peterkin v. City of New York, 293 A.D.2d 244, 247). The plaintiffs' failure to follow this procedure before service of their supplemental summons and amended complaint constituted a jurisdictional defect requiring dismissal of the action against the new party defendants ( see Dauernheim v. Lendlease Cars, 202 A.D.2d 624, 625). Furthermore, since the plaintiffs' failure to follow the requisite procedure rendered the supplemental summons and amended complaint a legal nullity, it was error for the Supreme Court to grant the plaintiffs leave to serve them nunc pro tunc ( see Dauernheim v. Lendlease Cars, supra).

SANTUCCI, J.P., SMITH, LUCIANO, SCHMIDT and MASTRO, JJ., concur.