Opinion
6445 Index 650033/14
05-03-2018
Dmitry MARKOV, Plaintiff–Appellant, v. STACK'S LLC (DELAWARE), Defendant–Respondent.
Law Offices of Sanford F. Young, P.C., New York (Sanford F. Young of counsel), for appellant. Bruce N. Lederman, New York, for respondent.
Law Offices of Sanford F. Young, P.C., New York (Sanford F. Young of counsel), for appellant.
Bruce N. Lederman, New York, for respondent.
Richter, J.P., Gesmer, Singh, Moulton, JJ.
Judgment, Supreme Court, New York County (Charles E. Ramos, J.), entered January 12, 2017, which granted defendant's motion to dismiss the amended complaint on the ground that the action was not commenced within the applicable statute of limitations, unanimously affirmed, without costs.
The motion court properly dismissed the complaint on the ground that it was served after the statutory limitations period had expired. Plaintiff's claims arose on January 14, 2008. The original complaint in this action, which was filed on January 6, 2014 (just days before the six-year statute of limitations expired), did not name Stack's LLC as a defendant, nor did it name defendant Stack's LLC (Delaware). The amended complaint, which for the first time named Stack's LLC (Delaware) as a defendant, was not filed until January 24, 2014—more than a week after the statute had run. Plaintiff cannot properly rely on CPLR 1024 as a shield from the statute of limitations. Even assuming that the appellation "John Doe" referred to a corporation rather than a natural person, the complaint's description of the John Doe defendant was not described in such a way as to fairly apprise Stack's LLC (Delaware) that it was an intended defendant (see Bumpus v. New York City Tr. Auth., 66 A.D.3d 26, 29–30, 883 N.Y.S.2d 99 [2d Dept. 2009] ; see Tucker v. Lorieo, 291 A.D.2d 261, 262, 738 N.Y.S.2d 33 [1st Dept. 2002] ). Thus, the inadequate description rendered the action jurisdictionally defective ( Thas v. Dayrich Trading, Inc., 78 A.D.3d 1163, 1165, 913 N.Y.S.2d 269 [2d Dept. 2010] ).
Plaintiff's remaining arguments are not preserved for appeal. Were we to consider those arguments, we would find them unavailing.