Opinion
Index No. 512449/2017
06-30-2023
Tzivyonet Sinvany, Plaintiff, v. The Metropolitan Transit Authority, the New York City Transit Authority, and "Jane Doe", unknown person driving the bus, Defendants.
For Plaintiff: Mark David Shirian, P.C., 212-931-6530, mshirian@shirianpc.com, 228 E. 45th St., Ste. 1700B, NY, NY 10017 For Defendants MTA and NYCTA: June-Annette F. Chenn Esq. (Anna J. Ervolina, Esq.), 718-694-3864, June-Annette.Chenn@nyct.com, 130 Livingston St., 11th Fl., Brooklyn NY 11201
Unpublished Opinion
For Plaintiff: Mark David Shirian, P.C., 212-931-6530, mshirian@shirianpc.com, 228 E. 45th St., Ste. 1700B, NY, NY 10017
For Defendants MTA and NYCTA: June-Annette F. Chenn Esq. (Anna J. Ervolina, Esq.), 718-694-3864, June-Annette.Chenn@nyct.com, 130 Livingston St., 11th Fl., Brooklyn NY 11201
Patria Frias-Colón, J.
Upon the foregoing cited papers and after oral argument on May 10, 2023, pursuant to CPLR §§ 1024 and 3025(b), the Decision and Order on Plaintiff's Motion to Amend the Complaint and Caption to replace "Jane Doe" with the true name of "Shantell Butler", and to extend the time to file a Note of Issue ("NOI"), is as follows:
The portion of Plaintiff's motion to amend the Complaint and Caption is DENIED. The portion of Plaintiff's motion to extend the time to file a NOI, upon which Defendants take no position, is GRANTED, with the date extended to July 25, 2023.
PROCEDURAL HISTORY
On or about March 13, 2017, Defendant "Jane Doe" was operating Defendants' bus in Kings County where Plaintiff was a passenger. The bus allegedly stopped short, causing Plaintiff's injuries. On or about June 23, 2017, Plaintiff served and filed the summons and complaint in this case. See NYSCEF Doc # 1.
In Plaintiff's affirmation in support of the instant motion, counsel states that at a preliminary conference held on September 25, 2017, Defendants gave him a MV-104 "filled out by Shantell Butler [reflecting] that she was in fact the driver of the bus." See NYSCEF Doc # 70 at paragraphs 5-6. On or about September 24, 2019, Butler sat for her deposition. See NYSCEF Doc # 70 at paragraph 9.
On or about March 25, 2021, Plaintiff moved for, inter alia, an Order to extend the NOI. On September 26, 2022, an Order was issued extending the NOI to March 17, 2023. See NYSCEF Doc # 70 at paragraph 10. In the instant March 17, 2023 motion, Plaintiff's counsel avers that "[u]pon reviewing the file before Note of Issue, your affirmant realized that the complaint need [sic] to be amended to include [Butler] as a direct Defendant." See NYSCEF Doc # 70 at paragraphs 11-12.
POSITION OF THE PARTIES
Plaintiff argues that while she was unaware of the bus driver's identity when she commenced the action on June 23, 2017, CPLR §§ 1024 and 3025(b) allow her to amend the complaint and caption of the case through the instant motion. Since CPLR § 3025(b) mandates that "[l]leave shall be freely given", the Court is allowed such an amendment absent prejudice or surprise resulting directly from the delay and Plaintiff cites several cases including McCaskey, Davies & Assocs., Inc. v. New York City Health & Hospitals Corp., 59 N.Y.2d 755 (1983) and Adams v. Jamaica Hosp., 258 A.D.2d 604 (2nd Dep't 1999). See NYSCEF Doc # 70 at paragraph 20. Plaintiff avers Defendants will not be unduly prejudiced or surprised by allowing Plaintiff to amend its complaint to substitute "Shantell Butler" for "Jane Doe" as Plaintiff believes that Defendants have not been hindered in any way from preparing their defenses, especially since Defendants were put on notice of the possible substitution after Butler was deposed on September 24, 2019. See NYSCEF Doc # 70 at paragraphs 21, 24.
CPLR § 1024 states that "A party who is ignorant, in whole or in part, of the name or identity of a person who may properly be made a party, may proceed against such person as an unknown party by designating so much of his name and identity as is known. If the name or remainder of the true name and all prior proceedings shall be deemed amended accordingly."
CPLR § 3025(b) provides that "A party may amend his or her pleading or supplement it by setting forth additional or subsequent transactions or occurrences at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such Terms as may be just including the granting of costs and continuances. Any motion to amend or supplement pleadings shall be accompanied by the Proposed amended or supplemental pleading clearly showing the changes or Additions to be made to the pleading."
Defendants oppose Plaintiff's application arguing that CPLR §§ 1024 and 3025(b) replacement of a "Jane Doe" or "John Doe" is governed by the service of process law under CPLR § 306-b, and that Plaintiff's attempt to substitute Butler for "Jane Doe" is simply untimely service and must be denied. Plaintiff's cited statutes are inapplicable because such reliance predicates a showing that a plaintiff had exercised due diligence, prior to the running of the Statute of Limitations, to identify the defendant by name and despite such efforts, was unable to do so. See NYSCEF Doc # 76 at paragraph 36 (citing Bumpus v. New York City Tr. Auth., 66 A.D.3d 26 [2nd Dep't 2009]).
CPLR § 306(b) states, in pertinent part, that service "shall be made within one hundred twenty days after the commencement of the action or proceeding, provided that in an action or proceeding service shall be made not later than fifteen days after the date on which the applicable statute of limitations expires. If service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service."
Defendants cite several cases in support of their position, including Leader v. Maroney, 97 N.Y.2d 95 (2001), Bahadur v. New York State Dept. of Correctional Servs., 88 A.D.3d 629 (2nd Dep't 2011) and Bumpus v. New York City Tr. Auth., 66 A.D.3d 26 (2nd Dep't 2009). According to Defendants, in interpreting any extension of the 120-day service provision of CPLR § 306-b for "good cause" or in "the interest of justice," requires alternative showings by a plaintiff, neither of which Plaintiff has demonstrated.
Defendants assert that Plaintiff's acknowledgement since the September 25, 2017 preliminary conference of the identifying information about the bus driver is "paramount to an admission that the plaintiff made no further efforts prior to the Preliminary Conference Order to obtain any information regarding 'Jane Doe' at all." See NYSCEF Doc # 76 at paragraph 18. Accordingly, pursuant to statute and case law, Plaintiff has not established good cause for an extension of the 120-day period past October 21, 2017 because she "fail[ed] to make a reasonably diligent effort at service." See NYSCEF Doc # 76 at paragraphs 12-14 (quoting Bumpus, 66 A.D.3d at 32).
Defendants argue Plaintiff also failed to meet the "interest of justice" threshold excusing the untimely service upon the bus driver. Defendants cite Bahadur, which held against extending the 120-day period for timely service on a previously unidentified party because" plaintiff failed to establish that an extension of time was warranted in the interest of justice, since she exhibited an extreme lack of diligence in attempting to effect service, made only a single unsuccessful effort to effect service two days prior to the expiration of the 120-day period of CPLR 306-b, failed to seek an extension of time until nearly two months after the defendants had moved to dismiss for lack of timely service, and did not make any additional showing beyond her attorney-verified amended complaint in support of the merits of her cause of action." See NYSCEF Doc # 76 at paragraph 16 (quoting Bahadur, 88 A.D.3d at 630); see also Bumpus 66 A.D.3d at 35; NYSCEF Doc # 76 at paragraphs 37-38.
Defendants ask this Court not to substitute Butler for "Jane Doe" because there is no practical consequence for Plaintiff when there is no allegation that she acted outside the scope of employment. See NYSCEF Doc # 76 at paragraphs 39-40 (citing Karoon v. New York City Transit Authority, 241 A.D.2d 323 [1st Dep't 1997] ["Where an employee is acting within the scope of employment, thereby rendering the employer liable for any damages caused by the employee's negligence under the theory of respondeat superior."]). It would be unfair for this Court to do so as it would deprive Butler of "the same consideration as any defendant-timely service prior to expiration of the Statute of Limitations." See NYSCEF Doc # 76 at paragraph 40.
DISCUSSION
In Bumpus v. New York City Tr. Auth., a "Jane Doe" transit employee defendant, was served with process almost eight months after the filing of the plaintiff's summons and complaint, but "immediately" after the defendant's true identify became known. Despite that "immediate" post-identity service, the Appellate Division held that plaintiff failed to show "good cause" for an extension of time under CPLR § 306-b, as her attorney did not attempt service at the employee's NYCTA disciplinary proceedings, and never described what serious efforts were made to timely locate the employee for service upon learning her name. See 66 A.D.3d at 27-29, 35-36.
The instant case and Bumpus have substantial commonality, including each "Jane Doe" having the same employer. Like Bumpus, where Plaintiff's counsel could have attempted to serve the "Jane Doe" employee at a disciplinary hearing and inexplicably did not, in the instant matter no explanation has been provided to explain why Plaintiff's counsel did not attempt service upon "Jane Doe" a/k/a Shantell Butler in 2019 during a deposition, much less at any time before that. Under the Bumpus analysis, no "good cause" for an extension of time under CPLR § 306-b is warranted in the instant case, as the Bumpus Court specifically noted that plaintiff should have cross-moved for an extension of time to serve process under that statute. See id. at 29.
The Appellate Division rejected plaintiff's attempt to use CPLR § 1024 to accomplish late service upon the identified defendant because plaintiff failed to "exercise due diligence", a predicate for the statute's application. See id. at 29-30, 34-35; see also Holmes v. City of New York, 132 A.D.3d 952, 953-954 (2nd Dep't 2015) (while Bumpus authorizes that the now-identified but formerly unknown "John Doe" defendant can be substituted into the action after the expiration of the statute of limitations ["SOL"], plaintiff must also show diligent efforts in having attempted to identify pre-SOL). While finding that plaintiff had not shown "good cause" for an extension of the service of process deadline, the Bumpus Court also concluded that plaintiff availed herself of other mechanisms to identify an unknown party, e.g., the Freedom of Information Law. See 66 A.D.3d at 33; see also Holmes, 132 A.D.3d at 954.
The Bumpus Court noted that an additional reason for the inapplicability of CPLR § 1024 and the applicability of CPLR § 306-b is that, prior to 1992, a party suing a "Jane Doe" defendant was under no time deadline to ascertain the unknown party's identity other than commencing the action against all defendants prior to expiration of the relevant SOL. CPLR § 306-a changed that by imposing the 120-day service of process period. See Bumpus 66 A.D.3d at 30; see also Holmes, 132 A.D.3d at 953 (plaintiff's unsuccessful CPLR §§ 1024 and 3025[b] motion to amend the complaint to substitute identified police officers for "John Does" should have been brought pursuant to CPLR § 306). Accordingly, this Court construes Plaintiff's motion not as an amendment or substitution of the complaint and caption to replace "Jane Doe" with "Shantell Butler", rather an attempt to extend the 120-day service deadline.
Plaintiff's reliance on two cases to persuade this Court to permit the substitution of Shantell Butler for "Jane Doe" is misplaced. Plaintiff cites to Adams v. Jamaica Hosp., 258 A.D.2d 604 (2nd Dep't 1999) and McCaskey, Davies & Associates, Inc., 59 N.Y.2d 755 (1983). In Adams, plaintiff sought leave to amend her bill of particulars to add an additional ground of negligence, namely the placing of stitches, and in citing McCaskey, the Appellate Division found the trial court providently exercised its discretion in allowing the amendment as it allowed plaintiff to further particularize her injury, and as the information was available since discovery, there could be no claim of prejudice or surprise. See 258 A.D.2d at 605. In McCaskey, the Court of Appeals held that the trial court abused its discretion in refusing to excuse plaintiff's failure to comply with a contractual time limitation requiring commencement of an action within six months of termination as "[t]here being nothing in the papers indicative of prejudice to or surprise of plaintiff." See 59 N.Y.2d at 757. Those cases are distinguishable from the instant matter in both facts (substituting into a case a now-identified defendant) and applicable law (namely CPLR § 306-b). Cases citing Adams have done so in the context of attempting to amend bills of particulars to include another theory of causation of death or injury, rather than to substitute a now-identified defendant for a "Jane/John Doe". See, e.g., Moore v. Franklin Hosp. Med. Center-North Shore-Long Is. Jewish Health Sys., 155 A.D.3d 945, 946 (2nd Dep't 2017); Cruz v. Bridge Harbor Heights Assocs., 274 A.D.2d 309, 310 (2nd Dep't 2000). Moreover, Shantell Butler would be prejudiced if she was added as a named defendant almost six years after commencement of the action. Cf. Beretey v. New York City Health & Hosps. Corp. (Elmhurst Hosp. Center), 56 A.D.3d 591, 594 (2nd Dep't 2008) (provident exercise of court's discretion to deny leave to serve late notice of claim where plaintiff waited five years to consult attorneys and four more years to file NOC); Kotler v. City of New York, 266 A.D.2d 355, 355 (2nd Dep't 1999) (provident exercise of court's discretion to deny leave to amend NOC after five-year unexplained delay).
In addition, there are distinctions between the procedural facts in the instant case and those in Bumpus further tilting such a granting of an extension against the instant Plaintiff. The Bumpus Court noted that plaintiff's counsel argued that the real surname of the "Jane Doe", "Lorna Smith", was so common that service of process upon her was impossible absent additional information like a home address, which Defendant NYCTA had refused to provide. See id. at 28. Only after NYCTA provided plaintiff with Lorna Smith's work address was she served, and plaintiff immediately did so, which was 233 days after the filing of plaintiff's summons and complaint. See id. at 29. This Court notes that while the delay in Bumpus was of much shorter duration, namely 233 days as opposed to almost six years in the instant action, and with the problems encountered in Bumpus with finding "Lorna Smith" and that plaintiff's "immediate" service of process upon receiving additional identifying information, the Bumpus Court still found that there was no "good cause" to grant a service of process extension as it did not find that "plaintiff's failure to timely serve process [was] a result of circumstances beyond the plaintiff's control." Id. at 32, 36.
In deciding whether or not a plaintiff, pursuant to CPLR § 306-b, should be granted an extension of time to serve a defendant beyond the time provided in this section, the Bumpus Court distinguished the threshold for "good cause" from "interest of justice", stating that "interest of justice" does not require that the plaintiff make "reasonably diligent efforts at service", but does allow for courts to consider such efforts, or the lack thereof, "among other factors" including but not limited to length of delay and prejudice to the defendant. Id. at 32, 35-36. Consequently, the Bumpus Court, "[u]nder the peculiar circumstances of this case" it denied an extension of the 120-day service deadline for "good cause" but granted it "in the interest of justice", specifically crediting plaintiff's arguments that "Smith had a common surname" and that Smith was promptly served once counsel learned her work address and schedule. See id. at 37. that Court also noted that the length of delay in service (233 days) was "not particularly egregious." Id. For all of the aforementioned factual differences between Bumpus and the instant action, this Court will not permit Plaintiff to substitute Shantell Butler for "Jane Doe" in the "interest of justice."
In sum, consistent with Bumpus and Holmes Courts, the instant Plaintiff failed to show "good cause" for failing to serve Shantell Butler in a timely fashion. Moreover, Plaintiff's failure to serve Shantell Butler in 2017, much less make a motion to substitute Ms. Butler for "Jane Doe" at any time prior to its instant motion made in March, 2023, almost six years after commencement of the action, cannot be excused "in the interest of justice". Cf. Holmes, 132 A.D.3d at 953-954 (Appellate Division denied leave to amend complaint to substitute identified police for "John Does," declining to find "good cause" or "interest of justice" to extend 120-day period). Accordingly, the portion of Plaintiff's motion to amend the Complaint and Caption of this action to replace "Jane Doe" with the true name of "Shantell Butler", is denied. Plaintiff's motion to extend the time to file a NOI, is granted without opposition and Plaintiff shall file the NOI by July 25, 2023.
This constitutes the Decision and Order of the Court.