Opinion
Index No. 155878/2014 Motion Seq. No. 001
12-16-2022
HELEN MARSHALL, TISHA MARSHALL, Plaintiff, v. THE CITY OF NEW YORK, JOHN DOE NUMBER ONE, JOHN DOE NUMBER TWO Defendant.
Unpublished Opinion
MOTION DATE 09/13/2022
PRESENT: HON. LESLIE A. STROTH, Justice.
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 001) 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41,42, 43, 44, 45, 46, 47 were read on this motion to/for _AMEND CAPTION/PLEADINGS.
This action arises from alleged civil rights violations of plaintiffs Helen Marshall and Tisha Marshall (plaintiffs) on August 5, 2013, when defendants the City of New York, John Doe Number One, and John Doe Number Two (together, the City) executed a search warrant at plaintiffs' residence. Plaintiffs claim that the City used excessive force, assaulted them and falsely arrested them, causing both to sustain multiple personal injuries.
Plaintiffs now move for leave to amend their complaint pursuant to CPLR 3025 (b) to substitute the previously named "John Doe" defendants with Detective Philip Tropp, Shield No. 01614; Detective Jorge Salazar, Shield No. 1253; P.O. Magdelena Domench, Shield No. 19232; Detective Thomas Hourican, Tax ID No. 904172; and Detective Thomas Driscoll, Tax ID No. 901490 (together, police defendants) as defendants to this lawsuit. The City submits opposition to the motion, and plaintiffs submit a reply. CPLR § 3025 (b) provides,
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.
Leave to amend a caption should be freely granted in the absence of prejudice or surprise unless the proposed amendment is palpably insufficient or patently devoid of merit. See MBIA Ins. Corp, v Greystone & Co., Inc., 74 A.D.3d 499 (1st Dept 2010). The First Department, Appellate Division has held that, "[the] plaintiff need not establish the merit of its proposed new allegations.. .but simply show that the proffered amendment is not palpably insufficient or clearly devoid of merit." Id. at 500 (citations omitted). "The burden of establishing prejudice is on the party opposing the amendment." Kimso Apartments. LLC v Gandhi, 24 N.Y.3d 403, 411 (2014) (citations omitted). Courts are given "...considerable latitude in exercising their discretion, which may be upset by us only for abuse as a matter of law." Matter of Von Bulow, 63 N.Y.2d 221 (1984).
Although the statute of limitations on these claims has expired, plaintiffs argue that their claims against the police defendants are timely as per the relation back doctrine. The relation back doctrineprovides that a party can be added to an action and the claim deemed timely interposed even after the statute of limitations expires, if:
(1) the claim arises out of the same conduct, transaction, or occurrence, (2) the additional party is united in interest with the original party, and (3) the additional party knew or should have known that but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against the additional party as well. See Bumpus v NY City Tr. Auth., 66 A.D.3d 26, 35 (2d Dept 2009); CPLR 203 (f).
Plaintiffs assert that the doctrine was established to liberalize strict pleading requirements. See Buran v Coupal, 87 N.Y.2d 173 (1995). The doctrine provides the Court with the discretion to identify those cases which "justify relaxation of limitations strictures ... to facilitate decisions on the merits if the correction will not cause undue prejudice to the plaintiffs adversary." Id. at 177-78 (internal citations omitted). Plaintiffs further assert that CPLR 1024 authorizes the naming of unknown parties when the identity of the defendants is, at that time, not available to plaintiff.
Moreover, plaintiffs argue that the filing of "John Doe" complaints when the identity of defendants is not known tolls the statute of limitations with respect to the unknown defendants. See Luckern v Lyonsdale Energy Limited Partnership, 229 A.D.2d 249, 255 (4th Dept 1997).
Plaintiffs contend that their amended complaint satisfies the three prongs of the relation back doctrine. First, they argue that both claims arise out of the same conduct and incidents asserted in the complaint, because the supporting documents regarding the incident annexed to the motion and plaintiffs' deposition transcripts demonstrate that all of the proposed police defendants, together, were involved in the incident at issue. Second, plaintiffs argue that the City and the police defendants are united in interest because of their employer-employee relationship. See Ramirez v Elias-Tejada, 168 A.D.3d 401, 403 (1st Dept 2019) (holding that plaintiff satisfied the second prong of the relation back doctrine under the doctrine of respondeat superior). Additionally, plaintiffs assert that all police defendants have been represented by the same counsel as the City from the outset and, therefore, have actual knowledge of this lawsuit through their counsel. Lastly, plaintiffs argue that they did not act intentionally or in bad faith in failing to name the new defendants in the original complaint. Here, plaintiffs assert, the names of the police defendants were not known at the time of filing the summons and complaint.
Plaintiffs conclude that defendants would suffer no prejudice if the amendment were allowed, because notice of claims filed with the City placed them on notice of the factual allegations concerning this incident; a General Municipal Law (GML) § 50-h hearing was conducted by counsel for the City, which allowed it to thoroughly investigate plaintiffs' allegations; the police defendants have all either been deposed or are in the process of scheduling depositions; and the Civilian Complaint Review Board (CCRB) conducted an investigation into the incident, in which several of the police defendants were interviewed.
The City opposes the motion, arguing that all of the relevant statutes of limitation have expired, and plaintiffs do not describe any diligent efforts to identify the proposed police defendants or claim that a mistake was made. See Tucker v Lorieo, 291 A.D.2d 261 (1st Dept 2002) ("To use the John Doe method of CPLR 1024 it must be shown that plaintiff made genuine efforts to ascertain the defendants' identities prior to the running of the statute of limitations" [internal citations omitted]). Further, the City asserts that the instant motion is late, because plaintiffs received correspondence from a CCRB investigation in 2014 which identified three of the proposed police defendants and learned of the other two proposed defendants through the City's 2017 discovery responses. The City asserts that the new parties could reasonably assume that plaintiff had not named them intentionally, because it claims that several years have passed during which plaintiff knew of their identities.
The City also argues that plaintiffs are pursuing intentional torts and punitive damages claims and, therefore, there is no unity of interest between the City and the proposed police defendants. It argues that the Appellate Division, First Department has held that there can be no relation back for any federal claims against the proposed police defendants, because the City cannot be held vicariously liable for its employees' violations of 42 USC § 1983. See Thomas v City of New York, 154 A.D.3d 417, 418(1 st Dept 2017). Therefore, the City posits that there is no unity of interest. Additionally, the City contends that the City is immune from punitive damages, which plaintiffs now intend to seek from police defendants.
The City also asserts that the original complaint only lists two "John Doe" defendants, whereas the amended complaint includes five individual defendants.
The Court notes that the original complaint asserts 12 causes of action, including federal claims, while the amended complaint claims only 6 causes of action, with no federal claims.
In reply, plaintiffs argue that mere delay is insufficient to deny leave to amend their complaint. See Sheppard v Blitman/Atlas Bldg. Corp., 288 A.D.2d 33, 34 (1st Dept 2001). They assert that courts have allowed amendment of the pleadings in cases where much more time had passed, citing Kimso Apts.. LLC v Gandhi (24 N.Y.3d 403 [2014]), in which the Court of Appeals held that "courts are free to permit amendment even after trial." Id. at 411.
Additionally, plaintiffs argue that the City would not be prejudiced by the inclusion of punitive damages or the addition of the proposed police defendants, because they assert that the City represented the police defendants at their depositions, thereby conceding that they were acting in the scope of their employment, and that the City indemnifies officers who have had punitive damages assessed against them. Nevertheless, although the City suggests in its opposition that it would be exposed to greater liability if plaintiffs' amendment is granted, plaintiffs assert that the Court of Appeals has held that exposure to greater liability does not constitute prejudice. See Loomis v Civetta Corinno Const. Corp., 54 N.Y.2d 18 (1981). Plaintiffs contend that the City's case theory would not change by adding the proposed police defendants.
The Court finds that the plaintiffs satisfied all three prongs of the relation back doctrine. First, it is undisputed that the proposed police defendants participated in plaintiffs' alleged unlawful arrests. Second, the City and its employees are united in interest, as the police defendants executed the plaintiffs' arrests as city employees, and Corporation Counsel represents all proposed individual defendants. Lastly, the police officers who were at the scene have anticipated being named in this action as individual defendants. Additionally, the City fails to sufficiently establish any prejudice, given that it has been aware of the proposed police defendants since 2017, at the latest, and exposure to greater liability does not constitute prejudice. Given the liberal standard by which courts may grant leaves to amend pleadings, plaintiffs' motion to amend the complaint to include the names of the individual officers involved in the incident is granted.
Accordingly, it is hereby ORDERED that the plaintiffs' motion for leave to amend the complaint is granted; and it is further
ORDERED that the amended complaint, in the form annexed to the motion papers, shall be deemed served upon service of a copy of this order with notice of entry upon all parties who have appeared in the action; and it is further
ORDERED that a supplemental summons and amended complaint, in the form annexed to the motion papers, shall be served, in accordance with the Civil Practice Law and Rules, upon the additional parties in this action within 30 days after service of a copy of this order with notice of entry; and it is further
ORDERED that the action shall bear the following caption:
HELEN MARSHALL and TISHA MARSHALL, Plaintiffs, -against
THE CITY OF NEW YORK, DETECTIVE JORGE SALAZAR, Shield No. 1253, Individually and in his Official Capacity, DETECTIVE PHILIP TROPP, Shield No. 01614, Individually and in his Official Capacity, P.O. MAGDELENA DOMENCH, Shield No. 19232, Individually and in her Official Capacity, DETECTIVE THOMAS HOURICAN, Tax ID. No. 904172, Individually and in his Official Capacity, and DETECTIVE THOMAS DRISCOLL, Tax ID No. 901490, Individually and in his Official Capacity.
And it is further
ORDERED that counsel for the moving party shall serve a copy of this order with notice of entry upon the County Clerk (60 Centre Street, Room 14IB) and the Clerk of the General Clerk's Office (60 Centre Street, Room 119), who are directed to mark the court's records to reflect the parties being added pursuant hereto; and it is further
ORDERED that such service upon the County Clerk and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address [www.nycourts.gov/supctmanh]).
This constitutes the decision and order of the Court.