Opinion
6214N Index 301016/10
04-05-2018
Migdalia DIAZ, as Administratrix of the Estate of Felix Colon, deceased, Plaintiff–Respondent, v. CITY OF NEW YORK, et al., Defendants–Appellants.
Zachary W. Carter, Corporation Counsel, New York (Devin Slack of counsel), for appellants. Sonin & Genis, Bronx (Robert J. Genis of counsel), for respondent.
Zachary W. Carter, Corporation Counsel, New York (Devin Slack of counsel), for appellants.
Sonin & Genis, Bronx (Robert J. Genis of counsel), for respondent.
Richter, J.P., Manzanet–Daniels, Andrias, Kapnick, Webber, JJ.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered August 8, 2016, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion to amend the complaint to substitute the names of the arresting officers for John Doe and James Roe, unanimously reversed, on the law, without costs, and the motion denied.
The motion court erred in granting plaintiff leave to amend her complaint and substitute the officers' names under the relation back doctrine, because the officers are not "united in interest" with the City of New York, the original defendant (see Thomas v. City of New York, 154 A.D.3d 417, 62 N.Y.S.3d 97 [1st Dept. 2017] ; Higgins v. City of New York, 144 A.D.3d 511, 43 N.Y.S.3d 1 [1st Dept. 2016] ). Moreover, plaintiff failed to show that the failure to name defendants was a mistake (see Buran v. Coupal, 87 N.Y.2d 173, 181, 638 N.Y.S.2d 405, 661 N.E.2d 978 [1995] ; Garcia v. New York–Presbyt. Hosp., 114 A.D.3d 615, 616, 981 N.Y.S.2d 84 [1st Dept. 2014] ). Further, as for those claims where plaintiff was unaware of the officers' identities prior to the statute of limitations running, she failed to show that she conducted a diligent inquiry into the actual identities of the intended defendants before the expiration of the statutory period (see Goldberg v. Boatmax://, Inc., 41 A.D.3d 255, 256, 840 N.Y.S.2d 570 [1st Dept. 2007] ; Holmes v. City of New York, 132 A.D.3d 952, 18 N.Y.S.3d 676 [1st Dept. 2015] ).We have considered plaintiff's remaining contentions and find them unavailing.