In this matrimonial matter plaintiff moves for an order pursuant to CPLR §§ 305(a), 1003 [*2]and 3025(b) granting plaintiff leave to file and serve a supplemental summons and a second amended verified complaint which adds P. D. and R. D., parents of defendant, as additional party defendants.This action for divorce was commenced by plaintiff wife on — — , 2011. Plaintiff argues that it is appropriate to add defendant's parents as additional party defendants in this action upon the grounds that they are the current record owners of the parties' marital residence based upon the defendant's diversion of said property, and that they are the financial alter ego of defendant.

Plaintiff alleges that in 2002 defendant had been heavily abusing drugs and alcohol, and was admitted to a rehabilitation facility for 9 months, at which time defendant began diverting all mail, including all bills and his income to his father, at his business address, either to hide such information from her, or because he was unable to handle the responsibility. Plaintiff claims that since 2002 defendant's parents have been paying the household bills, including the mortgage, real estate taxes, electric bill, cable bill and phone bill, and for nearly 5 years they have been making support payments to plaintiff on behalf of defendant. Plaintiff asserts that on or about — — , 2010, just prior to the commencement of the divorce action in — 2011, after she had informed defendant she met with an attorney, defendant transferred ownership of the marital residence to his parents ^[FN1]. Plaintiff contends that this motion is a necessity inasmuch as on or about May 1, 2011, defendant's parents transmitted a message to plaintiff through the children, that they were going to cease paying the household bills and making support payments on behalf of defendant.

Defendant alleges that while plaintiff states he was admitted to a rehab facility in 2002 for 9 months as a result of abusing drugs and alcohol, actually, in 2003 he had been convicted of DWI and as part of his parole sentencing, he had to go to counseling. Defendant asserts that in 2006 because plaintiff changed the locks on the marital residence, he moved into his office and had his mail forwarded to that address.

Defendant alleges that shortly thereafter, because he was unable to pursue his architectural projects, due to domestic and mental health issues, he was forced to borrow money from his parents who paid the bills in his absence and assisted him due to his lack of income.^[FN2] Defendant asserts that the aforesaid loan was taken to pay his criminal attorney's legal bills, the mortgage, household expenses, and to provide support for his children prior to his incarceration. Defendant submitted with his opposition a document titled "General Contract," dated December 1, 2009, pursuant to which defendant agreed, inter alia, to obtain a mortgage in the amount of $320,000, to be paid monthly at 4% interest, and pursuant to which his parents agreed to provide a property secured mortgage in the amount of $320,000 ^[FN3]; in the event defendant failed to make payments the marital residence was to be taken as payment for the loan. The Court notes the date the loan payments were to begin was omitted from the contract, as was the signatures of defendant's parents. Defendant alleges that his parents assisted him financially based upon a promise to pay back all of the monies borrowed. Defendant contends that he was in default as he had not paid anything back to his parents, [*3]and that on April 20, 2010 he signed a deed transferring the residence to his parents due to his failure to repay the loan. Moreover, defendant contends that the marital residence was purchased by him (as a result of a contract to purchase dated October 25, 1989) which was prior to the marriage on — — , 1990, and that neither plaintiff nor her family made any contributions to the purchase and upkeep, and that the residence is his separate premarital property.

Defendant asserts that in November 2008 he was arraigned on a 45 count indictment, including 24 felonies. He was found guilty of arson in the second degree class B, and was sentenced to jail for 7 years in February 2010; he claims his earliest release date is October 2014. Defendant claims that in 2008 his business income was $3985, and that he filed for assistance with social services and received Medicaid (which was revoked on March 21, 2010 due to his incarceration). Defendant questions what money plaintiff could claim he is diverting to his parents, when he has been fighting criminal charges for the past three years and has not earned more than approximately $6000.

Defendant claims that he has advised plaintiff since his incarceration that he was not in a position to pay or cover the expenses for the house, the children and plaintiff, and that he could not continue to borrow money from his parents to pay the expenses, and that his parents would no longer be paying the expenses. Defendant also alleges that plaintiff refuses to rent one of the apartments in the two family residence, and that she failed to report to the Court that she has been collecting unemployment.

Plaintiff alleges that the parents are necessary parties to this action as they are now the record owners of the marital residence, which is the only asset, and which is the only means of plaintiff obtaining funds for support of the children and herself based upon defendant's current incarceration. Plaintiff claims that she has made a sufficient showing to entitle her to amend the complaint. Plaintiff asserts that neither defendant nor his parents will be prejudiced if the motion for leave to serve a supplemental summons and second amended verified complaint is granted, as this action was commenced less than one year ago and the addition of the parents will not cause any inordinate delay. She claims the request to add the parents as defendants cannot be a surprise to the defendant or the parents based upon their ownership of the marital residence and their financial involvement with the parties. Moreover, plaintiff asserts that she has alleged a justiciable claim as the second amended verified complaint alleges that defendant diverted assets to the parents to pay the household expenses and to pay support to plaintiff, and that defendant transferred the marital residence to the parents in anticipation of this divorce action.

The defendant's parents claim that while plaintiff alleges that they paid support to her and the carrying charges on the residence, the second amended verified complaint does not include a request that the D. s pay support. The D.'s note that the only relief requested in the second amended verified complaint with respect to them is that they transfer the marital residence back to defendant, but that said transfer to them was made pursuant to the terms of a mortgage between defendant and them.

It has been held that in action for divorce, where it is alleged that individuals are third party transferees of marital property subject to a distribution dispute, it is appropriate to determine that such individuals are necessary parties to the action, and to grant leave to add them as party defendants to the pending divorce action. Solomon v. Solomon, 136 AD2d 697 (2nd Dept. 1988); Schmidt v. Schmidt, 99 AD2d 775 (2nd Dept. 1984); See, CPLR §§ 1001, 1003.

In the instant matter, defendant transferred the marital residence to his parents in April 2010. [*4]While defendant asserts that the transfer was made in accordance with his default in paying back a loan his parents made to him, and that the marital residence, purchased prior to the date of marriage, is his separate property, in which plaintiff does not have any interest, those issues have not yet been determined. Therefore, the Court finds that the defendant's parents, P. D. and R. D., are necessary parties to this action, and plaintiff is granted leave to file and serve a supplemental summons and a second amended verified complaint which adds them as party defendants.

All matters not decided herein are denied.

This decision shall constitute the order of the Court.

E N T E R

Dated: White Plains, NY

September 16, 2011LINDA CHRISTOPHER, J.S.C.