(dissenting). CPLR 1001 (b) is a provision that allows judges the discretion to permit litigation to continue without a necessary party, over whom the court lacks jurisdiction, if “justice [so] requires.” As the majority says, this statute should not be used except in “rare cases” to “circumvent the balance struck, and protections offered, by the statute of limitations” (majority op at 460). It is clear, as a matter of law, that this is not one of those “rare cases.” The allowed lapse of a statute of limitations by a party that offers no good excuse does not outweigh the prejudice to the missing necessary party, and in such a case, the trial court need not weigh the CPLR 1001 (b) factors to determine whether petitioner’s case can proceed.
The Red Hook/Gowanus Chamber of Commerce (Chamber) commenced a proceeding against the New York City Board of Standards and Appeals (Board) on January 23, 2004 challenging the Board’s grant of a zoning variance, filed December 24, 2003, to Imlay, the owner of a warehouse that wished to convert the building to residential use. Inexplicably, the Chamber never added Imlay as a respondent in its original suit.
When the Board moved to dismiss the petition pursuant to CPLR 3211 (a) (10), 1001, 1003, and 7804 (f) for failure to join Imlay as a necessary party, the Chamber sought to amend its petition to add Imlay. Supreme Court allowed Imlay’s joinder, even though the statute of limitations period had expired. The Appellate Division reversed Supreme Court, citing CPLR 1001 *463(b) and stating Chamber’s failure to adequately explain why it did not include Imlay, which had been subject to the jurisdiction of the court, precluded it from proceeding in Imlay’s absence. (Matter of Red Hook/Gowanus Chamber of Commerce v New York City Bd. of Stds. & Appeals, 18 AD3d 558 [2d Dept 2005].)
The issue here is whether CPLR 1001 (b) applies when jurisdiction has not been obtained over the necessary party because the statute of limitations expired. Stated another way, did the Appellate Division err, as a matter of law, by refusing to allow the proceeding to continue given petitioner’s failure to join landowner/developer Imlay within the statute of limitations without good reason? My conclusion is that there was no error. Indeed, as the Appellate Division implicitly found in reversing Supreme Court “on the law” (18 AD3d at 559), it would have been an abuse of discretion to permit the case to proceed.
Compulsory joinder rules exist as “protection of the opportunity and right to be heard in connection with a judicial determination that may affect a party’s personal or property rights” (1 Weinstein-Korn-Miller, CPLR Manual § 7.01). CPLR 1001 (b) states in part, “If jurisdiction over him can be obtained only by his consent or appearance, the court, when justice requires, may allow the action to proceed without his being made a party.” The determination of whether to dismiss or permit the case to continue in the absence of joinder rests within the court’s sound discretion (see Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801 [2003]). CPLR 1001’s Advisory Committee Notes explain, “The considerations enumerated [in CPLR 1001 (b)] are those emphasized in the case law, which, on analysis, indicates that the subject defies definitive statement and that decision must rest in the sound discretion of the court.” (Reprinted in NY Cons Law Serv, Book 4B, at 267.)
Discretion about how to apply the factors does not imply an obligation to list and discuss them in every case. Courts should not have to go through each CPLR 1001 (b) factor unless there is a good excuse for the allowed lapse of statutes of limitations, i.e., justice requires the court look at the matter further. Applying such a rule to the case at bar, we must ask, “Does justice require that litigation proceed without a necessary party when the necessary party’s identity was known to petitioner, who has no excuse for the party’s exclusion?” The answer is no.
Judicial discretion is “the exercise of judgment by a judge or court based on what is fair under the circumstances and guided *464by the rules and principles of law; a court’s power to act or not act when a litigant is not entitled to demand the act as a matter of right” (Black’s Law Dictionary 479 [7th ed 1999]). To force the courts to analyze the CPLR 1001 (b) factors when petitioners are plainly not entitled to prevail is to require a purposeless exercise. What petitioner Chamber terms resort to a “gatekeeper” question is actually the court using its discretion in the only appropriate way, considering that a primary focus of CPLR 1001 (b) is the protection of absent necessary parties (see generally 1 Weinstein-Korn-Miller, CPLR Manual § 7.02 [“the general policy of the (CPLR is) to limit the scope of indispensable parties to those cases and only those cases where the determination of the court will adversely affect the rights of non-parties”]).
“Statutes of limitation, like the equitable doctrine of laches, in their conclusive effects are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.” (Railroad Telegraphers v Railway Express Agency, Inc., 321 US 342, 348-349 [1944].)
Under Appellate Division case law, joinder is greatly disfavored where the statute of limitations has expired (see Matter of Mount Pleasant Cottage School Union Free School Dist. v Sobol, 163 AD2d 715, 716 [1990], affd for reasons stated below 78 NY2d 935 [1991]; see also Matter of Fagelson v McGowan, 301 AD2d 652, 652-653 [2d Dept 2003], lv denied 100 NY2d 503 [2003]; Matter of Ogbunugafor v New York State Educ. Dept., 279 AD2d 738, 739-740 [3d Dept 2001], lv denied 96 NY2d 712 [2001]). The dismissal of a proceeding will generally be upheld where the petitioner (1) knew of the necessary party’s identity prior to the expiration of the statute of limitations (see Matter of Chalian v Malone, 307 AD2d 619, 620 [3d Dept 2003]; Matter of Manupella v Troy City Zoning Bd. of Appeals, 272 AD2d 761, 763-764 [3d Dept 2000]; Matter of O’Connell v Zoning Bd. of Appeals of Town of New Scotland, 267 AD2d 742, 743-744 [3d Dept 1999], lv denied 94 NY2d 938 [2000]) or (2) failed to offer any adequate excuse for his or her failure to join a necessary party (see *465Matter of Lodge v D’Aliso, 2 AD3d 525, 526 [2d Dept 2003]; Matter of Bianchi v Town of Greece Planning Bd., 300 AD2d 1043, 1044 [4th Dept 2002]; Matter of Spence v Cahill, 300 AD2d 992, 993 [4th Dept 2002], lv denied 1 NY3d 508 [2004]), presumably because, in such cases, the petitioner was in the best position, but failed, to avoid prejudice to the absent party (see CPLR 1001 [b] [3]).
If the factors are explicitly weighed, as the majority advocates, the result will not change: the Chamber’s case could not proceed. Aside from factor 1, “whether the plaintiff has another effective remedy in case the action is dismissed on account of the nonjoinder” (CPLR 1001 [b] [1]), the remaining factors weigh in Imlay’s favor. Factor 2 asks about the prejudice which may accrue from nonjoinder. Imlay would suffer prejudice if it is not joined because it has a proprietary interest in the warehouse and its future development. Factor 3 asks whether and by whom prejudice might have been avoided or may be avoided in the future. The prejudice could have been avoided by the Chamber naming Imlay as a party, or could be avoided in the future if Imlay joined the litigation voluntarily. However, expecting Imlay to voluntarily appear and bear the expense of defending the issuance of its variance is unfair since it is not at fault for petitioner’s laxness. Factor 4 questions the feasibility of a protective provision by order or in the judgment. There does not appear to be any purpose to a protective provision by order or in the judgment because if the Chamber wins its suit against the Board, the variance will be repealed and Imlay’s economic interests will be directly affected. Factor 5 asks whether an effective judgment may be rendered in the absence of a person who is not joined. It is questionable that an effective judgment could be rendered without Imlay’s participation because its interests are directly impacted.
It should not be presumed that in the absence of an explicit weighing of factors, courts from the four appellate departments, over the years, have been abusing their discretion. The majority concludes that Supreme Court must consider all five factors even though jurisdiction was inexcusably lost through petitioner’s actions. If a party is necessary but was never subject to the court’s jurisdiction, then the court should consider the CPLR 1001 (b) factors before issuing a dismissal. When the statute of limitations has expired without an adequate excuse, however, courts need not recite the CPLR 1001 (b) factors in issuing a dismissal.
*466Accordingly, I dissent.
Judges Ciparick, Rosenblatt, Grafpeo and Read concur with Chief Judge Kaye; Judge G.B. Smith dissents in a separate opinion in which Judge R.S. Smith concurs.
Order reversed, etc.