Opinion
5889N Index 302456/14
03-01-2018
Mahwanga CAMPBELL, Plaintiff–Respondent, v. CITY OF NEW YORK, Defendant–Appellant, P.O. "John Doe I," et al., Defendants.
Zachary W. Carter, Corporation Counsel, New York (MacKenzie Fillow of counsel), for appellant. Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for respondent.
Zachary W. Carter, Corporation Counsel, New York (MacKenzie Fillow of counsel), for appellant.
Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for respondent.
Sweeny, J.P., Renwick, Tom, Mazzarelli, Oing, JJ.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered July 20, 2016, which granted plaintiff's motion to amend the complaint to substitute the names of the arresting officers for John Doe I and John Doe II, unanimously reversed, on the law, without costs, and the motion denied.
Plaintiff's acceptance of an adjournment in contemplation of dismissal bars the malicious prosecution claim (see Hollender v. Trump Vil. Coop., 58 N.Y.2d 420, 425–426, 461 N.Y.S.2d 765, 448 N.E.2d 432 [1983] ; Probber v. Yousef, 5 A.D.3d 204, 772 N.Y.S.2d 815 [1st Dept. 2004] ). As to the remaining claims, plaintiff should not have been granted leave to amend his complaint and substitute the officers' names under the relation back doctrine. 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] ).