You are here: / / PLAINTIFF DID NOT EXERCISE DUE DILIGENCE IN IDENTIFYING THE PARTY INITIALLY...

PLAINTIFF DID NOT EXERCISE DUE DILIGENCE IN IDENTIFYING THE PARTY INITIALLY SUED AS “JOHN DOE TRUCKING COMPANY;” COMPLAINT DISMISSED AS TIME-BARRED (SECOND DEPT). ​

The Second Department, reversing Supreme Court and dismissing the complaint as time-barred, determined plaintiff did not exercise due diligence in identifying the party initially sued as “John Doe Trucking Company” prior to the expiration of the statute of limitations:

Pursuant to CPLR 1024, “[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 [or her] name and identity as is known.” “However, a plaintiff cannot rely on CPLR 1024 unless he or she ‘exercise[s] due diligence, prior to the running of the statute of limitations, to identify the defendant by name and, despite such efforts, [is] unable to do so'” … . “Any failure to exercise due diligence to ascertain the ‘Jane Doe’s’ [or ‘John Doe’s’] name subjects the complaint to dismissal as to that party” … . Additionally, the “Jane Doe” or “John Doe” party must “be described in such form as will fairly apprise the party that she [or he] is the intended defendant” … .

Here, the plaintiff failed to establish that it made diligent efforts to ascertain Werner’s identity prior to the expiration of the statute of limitations … . Further, the description in the amended complaint was insufficient to fairly apprise Werner that it was the intended defendant … . Abrego v Tile World Import Corp., 2025 NY Slip Op 05661, Second Dept 10-15-25

Practice Point: Failure to exercise due diligence in identifying a party initially sued as a “John Doe” before the expiration of the statute of limitations will result in dismissal of the complaint.

 

You might also like
INTEREST MUST BE RECALCULATED AND ATTORNEY’S FEES MUST BE SHOWN TO BE REASONABLE, PERHAPS IN A HEARING, IN THIS FORECLOSURE ACTION (SECOND DEPT).
TRIAL JUDGE PROPERLY REFUSED TO INSTRUCT THE JURY ON THE SCARANGELLA DEFENSE WHICH PLACES THE RESPONSIBILITY FOR EMPLOYING A SAFETY DEVICE ON THE BUYER RATHER THAN THE MANUFACTURER.
AN EXPERT IN A MED MAL CASE NEED NOT BE A SPECIALIST IN THE RELEVANT FIELD; HERE A PRIMARY CARE PHYSICIAN LAID A PROPER FOUNDATION FOR AN OPINION ABOUT PLAINTIFF’S CARE; PLAINTIFF ALLEGED DEFENDANTS NEGLIGENTLY FAILED TO DIAGNOSE HER HEART CONDITION (SECOND DEPT).
FAILURE TO DISCLOSE THE SLIP AND FALL ACTION AS AN ASSET IN A BANKRUPTCY PROCEEDING DEPRIVED PLAINTIFF OF THE LEGAL CAPACITY TO SUE (SECOND DEPT).
THE PROPERTY IS OWNED BY AN LLC; ALTHOUGH THE PARTIES TO THE PARTITION ACTION ARE EQUAL MEMBERS OF THE LLC, MEMBERS HAVE NO INTEREST IN THE SPECIFIC PROPERTY OF AN LLC; THEREFORE THE PARTITION ACTION WAS NOT AVAILABLE (SECOND DEPT).
Amendment to Notice of Claim to Add Second Hospital Should Have Been Allowed
MERCHANDISE RACK IN THE AISLE OF DEFENDANT STORE WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS (SECOND DEPT).
PLAINTIFF FELL THROUGH PLANKING WHICH DID NOT ADEQUATELY PROTECT A SHAFT OPENING; THE FACT THAT PLAINTIFF’S FOREMAN INSTRUCTED PLAINTIFF NOT TO ENTER THE SHAFT SPEAKS TO COMPARATIVE NEGLIGENCE WHICH IS NOT A BAR TO SUMMARY JUDGMENT ON A LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

CONTRARY TO FAMILY COURT’S RULING, THE EVIDENCE SUPPORTED PARENTAL NEGLECT... IN THIS FORECLOSURE ACTION, FAILURE TO DEMONSTRATE COMPLIANCE WITH THE NOTICE-OF-FORECLOSURE...