“Normally, it is assumed that a mailed document is received three days after its mailing.” (citing Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 138 n.1 (1984)
How later courts described this case
- “Normally, it is assumed that a mailed document is received three days after its mailing.” (citing Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 138 n.1 (1984)
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------------x
JORGE VILLALOBOS and CINDY MARTINEZ,
Plaintiffs,
20-cv-9736 (PKC)
-against-
OPINION AND ORDER
CAPTAIN SMITH, CAPTAIN OLOGUN,
DEPUTY WARDEN SHARLISA WALKER,
OFFICER SMALL, and CITY OF NEW YORK,
Defendants.
-----------------------------------------------------------x
CASTEL, U.S.D.J.
Defendants Oladapo Ologun and Sharlisa Walker move, pursuant to Local Rule
6.3, for reconsideration of this Court’s May 16, 2022 Opinion and Order denying in part and
granting in part the defendants’ motions to dismiss. (Doc 53.) Specifically, they move for
reconsideration of the May 16, 2022 Opinion and Order to the extent that it holds that the state
claims against Ologun and Walker are not time-barred. For the reasons set forth below, the
motion will be denied. Familiarity with the Court’s prior decisions in this action is assumed.
The standards for motions for reconsideration under Local Rule 6.3 and altering
or amending a judgment under Rule 59(e), Fed. R. Civ. P, are “identical.” Burke v. Solomon
Acosta & FASCore/Great W. & MTA/NYC Transit Auth., 07 cv 9933 (PKC), 2009 WL
10696111, at *1 (S.D.N.Y. Apr. 23, 2009), aff'd sub nom. Burke v. Acosta, 377 Fed. App'x 52
(2d Cir. 2010) (citation omitted). Motions for reconsideration are held to strict standards, “and
reconsideration will generally be denied unless the moving party can point to controlling
decisions or data that the court overlooked—matters, in other words, that might reasonably be
expected to alter the conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d
255, 257 (2d Cir. 1995). Motions for reconsideration are not vehicles for the moving party to
relitigate an issue the Court already decided. Cordero v. Astrue, 574 F. Supp. 2d 373, 380
(S.D.N.Y. 2008); see also Shrader, 70 F.3d at 257.
In denying Walker and Ologun’s motion to dismiss the plaintiffs’ state law
claims against them, the Court noted that the text of New York General Municipal Law § 50-i
only discusses actions against “a city, county, town, village, fire district or school district,” and
does not discuss anywhere claims against individual employees, such as Walker and Ologun.
(May 16, 2022 Opinion and Order at 20.) At the time the Court issued the May 16, 2022
Opinion and Order, neither party had provided any case law to support the idea that § 50-i and its
statute of limitations also applied to suits against employees of a city despite the absence of any
statutory language discussing such suits. (See Doc 39 at 22-23; Doc 44 at 23-25; Doc 45 at 10.)
But in adjudicating the instant motion, the Court agrees that “[d]espite the statute’s seemingly
plain language, it applies not only to suits against municipal corporations but also to suits against
‘officers, agents or employees’ whose conduct has caused injury.” Gonzalez v. City of New
York, 94CIV.7377 (SHS), 1996 WL 227824, at *2 (S.D.N.Y. May 3, 1996) (brackets omitted)
(citing De Gradi v. Coney Island Med. Grp., P.C., 172 A.D.2d 582, 583 (2d Dep’t 1991) and
Norr v. Spiegler, 72 A.D.2d 20, 22-23 (1st Dep’t 1980)).
The Court now turns to the issue of whether the state law claims against Ologun
and Walker, brought after more than one year and ninety days since September 24, 2019, should
“relate back,” pursuant to Rule 15(c), Fed. R. Civ. P., to when the action was first filed in
November 19, 2020, within the deadline set forth under § 50-i. Although the Court did not rule
on this issue, the issue was fully briefed at the time of the May 16, 2022 Opinion and Order.
“For an amended complaint adding a new party to relate back under Rule
15(c)(1)(C), the following conditions must be met.” Hogan v. Fischer, 738 F.3d 509, 517 (2d
Cir. 2013) (citing Rule 15(c)(1)(C), Fed. R. Civ. P.). First, “the claim must have arisen out of
conduct set out in the original pleading.” Id. Second, “the party to be brought in must have
received such notice that it will not be prejudiced in maintaining its defense.” Id. Third, “that
party should have known that, but for a mistake of identity, the original action would have been
brought against it.” Id. (emphasis in original). Fourth, “the second and third criteria [must be]
fulfilled within [the ninety-day period provided by Rule 4(m) for serving the summons and
complaint], and the original complaint [must have been] filed within the limitations period.”
Ceara v. Deacon, 916 F.3d 208, 211 (2d Cir. 2019) (alterations omitted) (quoting Hogan, 738
F.3d at 517). In the briefing on both the motions to dismiss and the instant motion for
reconsideration, the parties appear to only dispute the third condition of mistaken identity, but
the Court will address each requirement in turn.
On August 25, 2021, Villalobos and Martinez amended the Complaint to change
the names of, and references to two defendants: from “Captain Oghagbon” to “Captain Ologun”
and from “Warden of GRVC” to “Deputy Warden Sharlisa Walker.” (Doc 31.) The Court
concludes that the first condition of Rule 15(c)(1)(C) is met, as the Amended Complaint’s claims
arise out of the same set of events as alleged in the original Complaint, filed on November 19,
2020, within the one-year-and-ninety-day statute of limitations under § 50-i.
The second condition regarding the lack of prejudice is satisfied for the same
reason that Ologun and Walker may invoke § 50-i here: as Ologun and Walker themselves note,
“[t]he rationale for the application of § 50-i to claims against City employees is that, where the
individual employees are entitle to claim indemnification from the City, the City is the real party
in interest.” (Doc 54 at 5.) See also Conte v. Cnty. of Nassau, N.Y., 596 Fed. App’x 1, 5 (2d
Cir. 2014) (summary order) (“[I]f the municipality is required to indemnify the defendant . . . [it]
is therefore ‘the real party in interest.’” (quoting Ruggiero v. Phillips, 292 A.D.2d 41, 44 (2d
Dep’t 2002))). The City—the real party in interest—was sued on November 19, 2020, within the
statute of limitations period set forth in § 50-i, and was timely served on November 20, 2020.
(Doc 1, 11.) Here, Ologun and Walker are protected by the procedural requirements of § 50-i
only because the City is the real party in interest, and it is undisputed that the City was timely
sued and served. It would therefore be contradictory to conclude that Ologun and Walker were
prejudiced by their failure to be named as defendants until the Amended Complaint was filed on
August 25, 2021. As also relevant to the issue of potential prejudice, substantive motions
practice did not begin until after the Amended Complaint was filed.1
The third condition—whether Ologun and Walker knew or should have known
that the original action would have been brought against them, but for a mistake of identity—is
also met. Significantly, Villalobos and Martinez did not amend their complaint to replace a John
Doe defendant from their original complaint; “an amendment to replace a John Doe defendant is
made ‘not to correct a mistake but to correct a lack of knowledge’ and is therefore not a mistake
under Rule 15(c)(1)(C).”2 Ceara, 916 F.3d at 213. Rather, the original complaint referred to
Captain Ologun as “Captain Oghagbon” and “Deputy Warden Sharlisa Walker” as “Warden of
GRVC,” and also “contained details identifying [Ologun and Walker]”—such as specifics as to
when, where and with whom Ologun and Walker were before and during the hostage crisis, as
1 The Court also notes that the City, the real party in interest, successfully sought repeated enlargements of time to
respond to the original complaint, first from December 22, 2020 to April 16, 2021 (Doc 20), and then to July 30,
2021 following the June 17, 2021 Initial Pre-Trial Conference. Following an August 17, 2021 case management
conference, defendants filed a motion to dismiss the Amended Complaint on September 30, 2021.
2 Ologun and Walker’s citation to Moran v. Cnty. of Suffolk, No. 11 Civ. 3704(PKC)(GRB), 2015 WL 1321685
(S.D.N.Y. Mar. 24, 2015), is inapposite. Moran dealt with an amendment replacing a John Doe defendant. Here,
Villalobos and Martinez knew that Ologun and Walker needed to be named and did so, with the wrong names.
well as their behavior and statements in Villalobos’s presence. Id. As such, it was “clear from
the first complaint to whom [plaintiffs were] referring, and it was clear from the amended
complaint that [plaintiffs were] referring to the same individual[s]. Consequently, no ‘new’
party was added.” Id. at 214. Here, the original complaint “garbled the spelling” of Ologun’s
name and incorrectly named Assistant Warden Walker as Warden of GRVC. Id. But based on
the specific details and allegations in the original complaint, the Court concludes that Ologun
and Walker either knew or should have known that the original action would have been brought
against them, but for a mistake of identity.
The fourth and final condition under Rule 15(c)(1)(C)—that (1) the second and
third criteria discussed above must be fulfilled within the ninety-day period provided by Rule
4(m), and (2) the original complaint must have been filed within the limitations period—is also
satisfied.3 The latter requirement is satisfied because, as noted, the original complaint was filed
within the one-year-and-ninety-days limitations period under § 50-i.
As to whether the second and third criteria under Rule 15(c)(1)(C) were fulfilled
within the ninety-day period consistent with Rule 4(m), the inquiry is more fact-intensive.4
Steve Kemp has sworn that on December 8, 2020, he served the original complaint and summons
on “Captain Oghagbon” and the “Warden of GRVC” by delivery on “C.O. Morgan,” their co-
worker, at their actual place of business. (Doc 16, 17.) Susan Cortina has also sworn that on
December 10, 2020, she mailed true copies of the original complaint and summons to “Captain
Oghagbon” and the “Warden of GRVC” at the New York City Department of Correction
(“NYCDC”) address in East Elmhurst, New York via first class mail. (Id.) The record does not
3 Rule 4(m), Fed. R. Civ. P. requires service of defendants within ninety days after the complaint is filed.
4 Ologun and Walker do not substantively discuss the final temporal requirement under Rule 15(c)(1)(C), and also
do not provide factual allegations as to when they may have known about the original complaint. (See Doc 45, 59.)
The Court analyzes the issue by reviewing the facts alleged in the parties’ briefing and apparent from the record.
indicate that C.O. Morgan or the NYCDC refrained from taking the appropriate steps to get the
pleading papers to Ologun and Walker, or that the mailed copies of the pleading papers were
returned or otherwise failed to be delivered to Ologun and Walker. See also Sherlock v.
Montefiore Med. Ctr., 84 F.3d 522, 525 (2d Cir. 1996) (“Normally, it is assumed that a mailed
document is received three days after its mailing.” (citing Baldwin Cnty. Welcome Ctr. v.
Brown, 466 U.S. 147, 138 n.1 (1984)). Ologun and Walker, however, deny that they received
actual service on December 8, 2020, and do not discuss when they actually received copies of the
original complaint and summons, noting only that Villalobos and Martinez have not “offered any
proof that the individual defendants had actual notice of this lawsuit as of December 17, 2020.”
(Doc 45 at 10 n.7.) The Court therefore refers to additional parts of the record to determine
whether this temporal requirement under Rule 15(c)(1)(C) has been satisfied.
First, counsel for the City—the real party in interest as emphasized by Ologun and
Walker and as recognized by New York case law applying § 50-i to suits against city
employees—received and reviewed the original complaint as early as December 15, 2020, less
than one month after the original complaint was filed on November 19, 2020 and served on the
City on December 1, 2020. (Doc 14.) Second, in the December 15, 2020 letter submitted to the
Court, counsel for the City represented that it planned to “conduct an investigation into the
underlying facts,” including “conducting discussions with the many City employees who may
have knowledge of the events” and “identify[ing] City employees who were witnesses to the
alleged incident.” (Doc 14 at 1-2.) In this same letter, counsel for the City also confirmed that
separate from the instant litigation, there was already “an open internal investigation of the
alleged incident,” indicating that the City had already begun investigating and had likely been in
contact with Ologun and Walker, who were two of the four central figures in the allegations of
the original complaint and Amended Complaint. (Id. at 2.) Third, on December 17, 2020,
counsel for City emailed counsel for plaintiffs with the individual defendants’ full names, shield
numbers and service addresses, specifically including “Captain Oladapo Ologun,” and “Deputy
Warden Sharlisa Walker,” in addition to “Captain Paul Smith” and “CO Durrell Small,” who had
already been named in the original complaint. (Doc 40-1.)
In this context, the Court concludes that the second condition of Rule
15(c)(1)(C)—that the parties to be added received notice such that they will not be prejudiced in
maintaining their defense—was satisfied within ninety days of the filing of the complaint as
required under Rule 4(m), specifically, when the City, the real party in interest, confirmed that it
had been served with and had reviewed the original complaint. The Court also concludes that
the third condition of Rule 15(c)(1)(C)—that the parties to be added knew or should have known
that, but for a mistake of identity, the original action would have been brought against them—
was also satisfied within ninety days of the filing of the complaint. As noted by the City’s own
submissions in its December 15, 2020 letter to the Court and its December 17, 2020 e-mail to
plaintiffs’ counsel, the City (1) emphasized that it would be investigating and interviewing
individuals implicated by the original complaint, (2) confirmed that there was already an
ongoing internal investigation regarding the same incident; and (3) confirmed via e-mail, just
two days after its December 15, 2020 letter to the Court, its knowledge that the true names of
“Captain Oghagbon” and “Warden of GRVC” were “Captain Ologun” and “Deputy Warden
Sharlisa Walker,” respectively. Given this, the Court concludes that Ologun and Walker—with
whom the City’s counsel appears to have spoken for purposes of the City’s factual investigation
and her eventual appearance as their counsel—either knew or should have known by around
December 17, 2020, within the ninety-day period set forth under Rule 4(m), that the original
action would have been brought against them, but for the plaintiffs’ mistake regarding their
identity.
Accordingly, the Amended Complaint naming Ologun and Walker satisfies the
requirements of Rule 15(c)(1)(C), Fed. R. Civ. P., and relates back to the original complaint,
which was timely filed on November 19, 2020 within the statute of limitations pursuant to § 50-i.
The Court also notes that if the body of limitations law that provides the
applicable statute of limitations—here, New York state law—“affords a more forgiving principle
of relation back than the one provided in [Rule 15(c)], it should be available to save the claim.”
Hogan, 738 F.3d 509, 518 (2d Cir. 2013) (citing Rule 15(c), Fed. R. Civ. P.). For the reasons
noted, the Amended Complaint satisfies Rule 15(c)(1)(C), and thus does not need saving. But as
an additional ground for relation back, “[a]s codified in New York’s Civil Practice Law and
Rules, what is commonly referred to as the relation back doctrine allows a claim asserted against
a defendant in an amended filing to relate back to claims previously asserted against a
codefendant for Statute of Limitations purposes where the two defendants are ‘united in
interest.’” Buran v. Coupal, 87 N.Y.2d 173, 177 (1985) (citing N.Y. C.P.L.R. § 203).
Specifically, there are “three conditions that must be satisfied in order for claims
against one defendant to relate back to claims asserted against another:” (1) both claims must
have arose out of the same conduct, transaction or occurrence; (2) the new party must be united
in interest with the original defendant, and by reason of that relationship can be charged with
such notice of the institution of the action that he will not be prejudiced in maintaining his
defense on the merits; and (3) the new party knew or should have known that but for a mistake
by plaintiff as to the identity of the proper parties, the action would have been brought against
him as well. Id. at 179. Similar to Rule 15(c)(1)(c), Fed. R. Civ. P., the New York state rule
does not require that the plaintiffs’ mistake be “excusable,” as such a qualifier “shifts the focus
away from the primary question of whether the new party had actual notice of the claim.” Id. at
180 (citing Schiavone v. Fortune, 477 U.S. 21 (1986) and Virelli v. Goodson-Todman Enters..,
142 A.D.2d 479 (3d Dep’t 1989)). For the reasons discussed above, these requirements under
N.Y. C.P.L.R. § 203 are satisfied. As to the New York-specific requirement that the new party
be united in interest with the original defendant, this condition is satisfied because, as noted, the
City, as the employer required to indemnify its employees Ologun and Walker, is the “real party
in interest” in this litigation.
Accordingly, the conclusion of the Court in its May 16, 2022 Opinion and
Order—that the state law claims against Ologun and Walker are not time-barred under New
York General Municipal Law § 50-i—remains unaltered and the motion for reconsideration will
be denied.*
CONCLUSION
After consideration of all the arguments of the parties, including those not
expressly referenced, Walker and Ologun’s motion for reconsideration is DENIED. The Clerk is
respectfully directed to terminate the motion (Doc 53).
SO ORDERED.
LZ Poewon
LZ Peers Pl
United States District Judge
Dated: New York, New York
July 12, 2022
* As the respondeat superior issue is unnecessary for adjudication of the instant motion, the Court declines to address
it.