                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 31, 2016                    519652
________________________________

AMY NICHOLS, Doing Business
   as BLIND TIGER PUB,
                    Appellant,
      v

MARIE H. DIDAS et al.,
                    Respondents.

REEDER GLENN NICHOLS,
                    Proposed
                    Intervenor-
                    Appellant.

(Action No. 1.)
________________________________            MEMORANDUM AND ORDER

AMY NICHOLS, Doing Business
   as BLIND TIGER PUB,
                    Appellant,
      v

MARBIL PROPERTIES, LLC, et al.,
                    Respondents.

(Action No. 2.)
________________________________


Calendar Date:   February 9, 2016

Before:   Peters, P.J., McCarthy, Egan Jr. and Lynch, JJ.

                             __________


      DeRoberts Law Firm, Syracuse (Nicholas E. Tishler,
Niskayuna, of counsel), for appellant and proposed intervenor-
appellant.
                              -2-                519652

     Cynthia Feathers, Glens Falls, for respondents.

                           __________


McCarthy, J.

      Appeals (1) from an order of the Supreme Court (Reynolds
Fitzgerald, J.), entered August 4, 2014 in Broome County, which,
among other things, denied Reeder Glenn Nichols' motion for
permission to intervene, (2) from an order of said court, entered
August 4, 2014 in Broome County, which, among other things, sua
sponte dismissed the complaint in action No. 1, and (3) from an
order of said court, entered August 4, 2014 in Broome County,
which granted defendants' motion to dismiss the complaint in
action No. 2.

      In 2005, JJAGQ Enterprises, LLC, doing business as Blind
Tiger Pub, leased premises from defendant Marie H. Didas for an
initial term of five years, which could be renewed for three
successive five-year terms provided that the tenant gave notice
to renew six months before the expiration of the term. The lease
was assigned with Didas' permission in 2009 by JJAGQ Enterprises
to plaintiff, who was the sole owner of JJAGQ Enterprises. The
first five-year term of the lease was due to expire on February
22, 2010, and plaintiff did not provide written notice of renewal
until two months before the expiration date. Didas rejected the
renewal, prompting plaintiff to commence action No. 1 asserting,
among other things, that equity should excuse her failure to
timely exercise the option.

      Plaintiff's motion for summary judgment in action No. 1 was
denied and, when plaintiff learned that Didas had assigned her
interest in the leased premises to a company owned by Didas –
defendant Marbil Properties, LLC – she commenced action No. 2
against Didas, Didas' spouse and Marbil Properties seeking
essentially the same relief regarding the lease renewal. Supreme
Court dismissed action No. 2, but added Marbil Properties as a
defendant in action No. 1. Meanwhile, as part of plaintiff's
divorce from her husband – proposed intervenor Reeder Glenn
Nichols – she had assigned to Nichols her interest in the Blind
                              -3-                519652

Tiger Pub business. As a result, Supreme Court sua sponte
dismissed action No. 1 with prejudice on the ground that
plaintiff lacked standing and denied Nichols' motion to be added
as a necessary party or to intervene as a plaintiff. Plaintiff
and Nichols appeal from the orders dismissing both actions, as
well as the order denying the motion to add Nichols as a party.

      Plaintiff has standing to pursue action No. 1. "Standing
is a threshold issue requiring 'an actual legal stake in the
outcome' of the action, namely 'an injury in fact worthy and
capable of judicial resolution'" (Aiardo v Town of E. Greenbush,
64 AD3d 849, 851 [2009], quoting Matter of La Barbera v Town of
Woodstock, 29 AD3d 1054, 1055 [2006], appeal dismissed 7 NY3d 844
[2006]; see Kosmider v Garcia, 111 AD3d 1134, 1135 [2013]).
Although plaintiff transferred her interest in the Blind Tiger
Pub business to Nichols as part of their divorce, she did not
assign or relinquish her rights in the lease of the premises
where the business is located. The lease includes an option to
purchase and also, as part of her divorce, she is entitled to
some of the future profits that Nichols may realize in operating
the Blind Tiger Pub. Plaintiff has a stake in sustaining the
viability of the lease. Thus, Supreme Court erred in sua sponte
dismissing action No. 1 on the ground that plaintiff lacked
standing.

      Supreme Court also erred in not granting Nichols' motion to
be added as a plaintiff. A person who "might be inequitably
affected by a judgment in the action shall be made [a]
plaintiff[] or defendant[]" (CPLR 1001 [a]; see Hitchcock v
Rourke, 130 AD3d 1111, 1113 [2015]; Olney v Areiter, 104 AD3d
1100, 1101 [2013]). Nichols became the owner of the business
operating at the leased premises after action No. 1 was
commenced. While he is not a party to the lease, the continued
presence of his business at the current site hinges upon the
outcome of the pending litigation and, accordingly, he should be
added as a party (see Matter of 37 W. Realty Co. v New York City
Loft Bd., 72 AD3d 406, 406 [2010]; Franklin Park Plaza, LLC v V &
J Natl. Enters., LLC, 57 AD3d 1450, 1452 [2008]).
                              -4-                519652

      Assuming that the alternative ground for affirmance raised
by defendants is properly before us, we are unpersuaded by their
contention that, if we searched the record, they would be
entitled to summary judgment on the merits. Plaintiff seeks,
among other things, equitable relief. "[E]quity will intervene
to relieve a commercial tenant's failure to timely exercise an
option to renew a lease where (1) such failure was the result of
'inadvertence,' 'negligence' or 'honest mistake'; (2) the
nonrenewal would result in a 'forfeiture' by the tenant; and (3)
the landlord would not be prejudiced by the tenant's failure to
send, or its delay in sending, the renewal notice" (Baygold
Assoc., Inc. v Congregation Yetev Lev of Monsey, Inc., 19 NY3d
223, 225 [2012], quoting J.N.A. Realty Corp. v Cross Bay Chelsea,
42 NY2d 392, 394, 398-400 [1977]). Viewing the relevant facts in
the record in the light most favorable to plaintiff (see e.g.
Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]), there was
proof that the delay in providing written notice was the result
of inadvertence, plaintiff had expended substantial funds to
renovate the premises and defendants had not been prejudiced by
the late written notice. Accordingly, there are triable issues.
The remaining contentions are either academic or unavailing.

     Peters, P.J., Egan Jr. and Lynch, JJ., concur.



      ORDERED that the order entered August 4, 2014, among other
things, dismissing the complaint in action No. 1 is modified, on
the law, without costs, by reversing so much thereof as dismissed
said action; action No. 1 reinstated; and, as so modified,
affirmed.

      ORDERED that the order entered August 4, 2014, among other
things, denying Reeder Glenn Nichols' motion to intervene is
modified, on the law, without costs, by reversing so much thereof
as denied said motion; motion granted and Reeder Glenn Nichols is
joined as a plaintiff in action No. 1; and, as so modified,
affirmed.
                              -5-                  519652

      ORDERED that the order entered August 4, 2014 dismissing
action No. 2 is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
