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Criteria for Amending a Complaint to Replace “John Does” with Named Defendants Explained

Plaintiff alleged he was injured when tackled by police officers. The officers were named in the complaint as “john does.” After the statute of limitations had run, plaintiff sought to amend the complaint to name the officers involved. The Second Department determined the motion was properly denied because plaintiff did not exercise due diligence in discovering the officers’ names:

In order to employ the procedural “Jane Doe” or “John Doe” mechanism made available by CPLR 1024, a plaintiff must show that he or she made timely efforts to identify the correct party before the statute of limitations expired … . “[W]hen an originally-named defendant and an unknown Jane Doe’ [or John Doe’] party are united in interest, i.e. employer and employee, the later-identified party may, in some instances, be added to the suit after the statute of limitations has expired pursuant to the relation-back’ doctrine of CPLR 203(f), based upon postlimitations disclosure of the unknown party’s identity” … . The moving party seeking to apply the relation-back doctrine to a later-identified “Jane Doe” or “John Doe” defendant has the burden, inter alia, of establishing that diligent efforts were made to ascertain the unknown party’s identity prior to the expiration of the statute of limitations … .

Here, the plaintiffs failed to establish that they exercised due diligence to discover the identity of the John Doe defendants prior to the expiration of the statute of limitations. There is no indication in the record that the plaintiffs engaged in any pre-action disclosure or made any Freedom of Information Law requests … . Moreover, there is no indication that the plaintiffs sought assistance from either the Criminal Court or the Supreme Court to learn the identities of the individual officers before the statute of limitations had run … . Although the plaintiffs maintain that, due to a pending investigation by the NYPD’s Internal Affairs Bureau, they did not learn the identities of the subject officers until the injured plaintiff’s criminal trial, the plaintiffs’ submissions failed to show that they diligently sought to gain access to the records contained in the file for the criminal proceeding prior to the expiration of the statute of limitations. Holmes v City of New York, 2015 NY Slip Op 07819, 2nd Dept 10-28-15

 

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Statute of Limitations for Breach of Fiduciary Duty Tolled Until Fiduciary’s Roles Terminated

In an action against a fiduciary stemming from the distribution of an estate, Supreme Court determined the six-year statute of limitations applied to the breach of fiduciary duty cause of action and precluded any evidence from prior to 2007.  The Third Department agreed that the six-year statute was the correct one, but held that the statute never started running because the fiduciary’s roles were never terminated. Therefore pre-2007 evidence was not precluded:

Although “New York law does not provide a single statute of limitations for breach of fiduciary duty claims [and] the choice of the applicable limitations period depends on the substantive remedy that the plaintiff seeks” …, the parties do not dispute that a six-year period applies to these two remaining causes of action. However, the statute of limitations for a claim alleging a breach of fiduciary duty is tolled until there has been an open repudiation by the fiduciary or the relationship has otherwise been clearly terminated … .

There is nothing in this record indicating that respondents’ relevant fiduciary roles have terminated. Although many of the actions about which petitioners complain were done openly, petitioners also allege that they were repeatedly assured that such actions were ultimately in their best interests. The amended petition alleges that respondents have not to date repudiated their positions as fiduciaries. That allegation is not denied in this pre-answer motion, which was supported only by an attorney’s affirmation and memorandum of law. Matter of Therm, Inc., 2015 NY Slip Op 07732, 3rd Dept 10-22-15

 

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Patient Held In a Mental Health Facility After the Court Order Authorizing Confinement Had Expired Was Entitled to Habeas Corpus Relief Pursuant to CPLR Article 70

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a dissent, reversing the appellate division, determined that a patient, who was held in a mental health facility pursuant to a court order which the facility neglected to extend, was entitled to release pursuant to a CPLR article 70 habeas corpus proceeding. The hospital unsuccessfully argued that the only habeas-corpus relief available to the patient was pursuant to Mental Hygiene Law 33.15 which required an inquiry into the patient’s mental state:

CPLR 7001 provides that article 70 applies to common-law and statutory writs of habeas corpus “[e]xcept as otherwise prescribed by statute” (CPLR 7001). However, nothing in the plain language of Mental Hygiene Law § 33.15 purports to limit the availability of the common-law writ in Mental Hygiene Law proceedings. Rather, section 33.15 enhances the efficacy of the writ of habeas corpus, as our case law dictates, and thereby ensures that patients are not committed and retained without due process of law. That is, Mental Hygiene Law § 33.15 allows patients to seek a writ of habeas corpus when they are being held pursuant to a court order but, nevertheless, believe they have sufficiently recovered from their mental illness so that their continued retention is unwarranted; in such cases, determining the legality of their retention would require an inquiry into their mental state. On the other hand, patients whose detention is otherwise unauthorized may proceed under the habeas corpus provisions of CPLR article 70 since the legality of their detention can be determined on the basis of, for example, whether the appropriate procedures have been followed, without the need for a hearing into their mental state.  People ex rel. DeLia v Munsey, 2015 NY Slip Op 07697, CtApp 10-22-15

 

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Dismissal of Criminal Case Did Not Collaterally Estop Civil Case Based Upon the Same Forged-Deed Allegation/No Statute of Limitations Applies to Case Based Upon Forged-Deed Allegation

In an action based upon the allegation the signature on a deed was forged, the Third Department determined no statute of limitations applies to forged deeds which are void ab initio and the dismissal of a Spanish criminal case based upon the forged-deed allegation did not collaterally estop the New York civil action:

We agree with plaintiffs that they are not collaterally estopped from maintaining this action. It is well established that “dismissal of a criminal charge . . . does not generally constitute collateral estoppel in relation to a civil action because of the difference in the burden of proof to establish the factual issues” … . Indeed, the Spanish court dismissed the Spanish criminal action “without prejudice,” expressly permitting the matter to “be referred to civil jurisdiction.” Inasmuch as this dismissal of the Spanish criminal action did not conclusively establish whether the signature was forged, and did not preclude plaintiffs from commencing a similar civil action, defendants have failed to satisfy their burden of proving “that this identical issue was necessarily decided in the [prior action] and is conclusive in the [present] action” … .

Nor should plaintiffs’ action have been deemed time-barred by the statute of limitations. While the limitations period for a cause of action sounding in fraud is the greater of six years after the cause of action accrued or two years after it could have been discovered with reasonable diligence (see CPLR 213 [8]), the Court of Appeals has recently held that this period does not apply when the particular species of fraud alleged is the forgery of a deed. The Court found that, unlike other fraud-based causes of action, “a claim against a forged deed is not subject to a statute of limitations defense” because of “the clarity of our law that a forged deed is void ab initio, and that it is a document without legal capacity to have any effect on ownership rights” … . Mazo v Mazo, 2015 NY Slip Op 07721, 3rd Dept 10-22-15

 

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Inadequate Pain and Suffering Damages Verdict Properly Set Aside

The Second Department determined the jury’s pain and suffering damages award in a slip and fall case was against the weight of the evidence and Supreme Court properly set the damages verdict aside:

After a trial on the issue of damages, the jury awarded the plaintiff the sum of $20,000 for past pain and suffering and $0 for future pain and suffering. The trial court correctly granted the plaintiff’s motion pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of damages, as that verdict was contrary to the weight of the evidence. The jury’s determination that the plaintiff was not entitled to damages for future pain and suffering was inconsistent with the evidence that her shoulder injury was permanent in nature … . The award for past pain and suffering was also contrary to the weight of the evidence, as it could not have been reached on any fair interpretation of the evidence … . Santana v Western Beef Retail, Inc., 2015 NY Slip Op 07639, 2nd Dept 10-21-15

 

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Forum Selection and Time Limitation Clauses in Cruise Ship Ticket Enforceable

The Second Department, reversing Supreme Court, determined that the forum selection and time limitation clauses in a “Carnival” cruise ship ticket were enforceable. The passenger’s personal injury complaint was dismissed:

A contractual forum selection clause contained in a cruise passenger ticket is generally enforceable as long as it has been reasonably communicated to the passenger and does not violate notions of fundamental fairness, and the submission thereof constitutes documentary evidence that may provide a proper basis for dismissal of an action pursuant to CPLR 3211(a)(1) … . Here, Carnival’s submissions established that the plaintiffs’ contract of carriage included a clause requiring that any disputes between the parties “shall be litigated, if at all, before the United States District Court for the Southern District of Florida in Miami, or as to those lawsuits to which the Federal Courts of the United States lack subject matter jurisdiction, before a court located in Miami-Dade County, Florida, U.S.A. to the exclusion of the Courts of any other county, state or country.” Furthermore, the contract provided that an action to recover damages for personal injuries “shall not be maintainable unless filed within one year after the date of the injury.” Carnival also established that the plaintiffs had a reasonable opportunity to review their tickets, and there is no allegation of fraud or overreaching … . Fritsche v Carnival Corp., 2015 NY Slip Op 07618, 2nd Dept 10-21-15

 

Prejudice Which Would Preclude Amendment of an Answer Must Stem from a Right Lost in the Interim Between the Original Answer and the Application to Amend

The First Department, reversing Supreme Court, determined defendant (Environmental) should have been allowed to amend its answer to deny its employee (Tompkins) was acting within the scope of his employment when the accident at issue occurred. The court explained that plaintiff failed to demonstrate prejudice from the amendment, as the term “prejudice” is to be understood in this context:

A proper showing of prejudice must be “traceable not simply to the new matter sought to be added, but also to the fact that it is only now being added. There must be some special right lost in the interim, some change of position or some significant trouble or expense that could have been avoided had the original pleading contained what the amended one wants to add” … . Plaintiff has made no such showing. In her opposition before the motion court, plaintiff asserted that she would be prejudiced by the amendment because Environmental “would be vicariously liable for the acts of [Thomas] Tompkins,” if Tompkins was operating the vehicle within the scope of his employment. This is not the kind of significant prejudice necessary to deny an amendment to the pleading, as plaintiff would suffer the same “prejudice” if Environmental had raised its scope-of-employment defense in its initial answer. Williams v Tompkins, 2015 NY Slip Op 07598, 1st Dept 10-20-15

 

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Mandamus to Compel Judge to Decide Motions Proper

The Second Department determined mandamus was the proper vehicle to compel a judge to decide pending motions:

“Mandamus will lie to compel the determination of a motion” … . Under the particular circumstances of this case, the petitioner demonstrated a clear legal right to the relief sought … . Accordingly, the petition must be granted insofar as asserted against the respondent …, and that respondent is directed to issue written orders within 30 days of this decision and judgment determining the four fully submitted motions pending in the underlying action … . Matter of Liang v Hart, 2015 NY Slip Op 07502, 2nd Dept 10-14-15

 

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Appeal, Rather than a Motion to Vacate a Default Judgment, Is the Proper Remedy Where a Party Appears to Contest Motion to Enter a Default Judgment

The Second Department noted that the prohibition of an appeal from an ordered entered upon default does not apply when a party appears to contest a motion to enter a default judgment:

Although CPLR 5511 prohibits an appeal from an order entered upon default, that provision does not apply where, as here, a party appears and contests a motion for leave to enter a default judgment … . Under the circumstances [of this case], the proper remedies were either an appeal from the default order, a timely motion for reargument or renewal, or an appeal from a judgment entered after the inquest on damages, which would bring up for review the default order … . Thus, a motion to vacate the default order was procedurally improper and should not have been entertained … . Cole-Hatchard v Eggers, 2015 NY Slip Op 07466, 2nd Dept 10-14-15

 

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contract for the sale of busiwas not intertwined with the promissory note and personal guaranty

Reversing Supreme Court, the Second Department determined the contract for the sale of plaintiff’s one-half share of a business to defendant was not intertwined with the promissory note and personal guaranty executed by the defendant in connection with the sale. Therefore plaintiff was entitled to summary judgment in lieu of a complaint based upon defendant’s default:

The plaintiff made a prima facie showing of his entitlement to judgment as a matter of law by submitting the promissory note, which contained an unequivocal and unconditional obligation to pay, the personal guaranty, and proof of the defendants’ failure to make payments on the note according to its terms … .

In opposition, the defendants failed to raise a triable issue of fact as to a bona fide defense … . “[T]he general rule is that the breach of a related contract cannot defeat a motion for summary judgment on an instrument for money only unless it can be shown that the contract and the instrument are intertwined and that the defenses alleged to exist create material issues of triable fact” … .

Here, contrary to the Supreme Court’s determination, the evidence submitted by the defendants failed to establish that the agreement and the promissory note were intertwined, such that any breach of the related agreement by the plaintiff may create a defense to payment on the note. Chervinsky v Rezhets, 2015 NY Slip Op 07463, 2nd Dept 10-14-15

 

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