The opinion
Hibbert v City of New York
2024 NY Slip Op 34147(U)
November 26, 2024
Supreme Court, New York County
Docket Number: Index No. 155765/2019
Judge: Hasa A. Kingo
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FILED: NEW YORK COUNTY CLERK 11/26/2024 04:32 PM INDEX NO. 155765/2019
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 11/26/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. HASA A. KINGO PART 05M
Justice
---------------------------------------------------------------------------------X INDEX NO. 155765/2019
DURRELL HIBBERT,
MOTION DATE N/A
Plaintiff,
MOTION SEQ. NO. 002
-v-
CITY OF NEW YORK, CORRECTION OFFICER(S)
JOHN/JANE DOE(S) (CORRECTION OFFICERS WHOSE DECISION + ORDER ON
IDENTITY IS PRESENTLY UNKNOWN) MOTION
Defendant.
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The following e-filed documents, listed by NYSCEF document number (Motion 002) 20, 21, 22, 23, 24,
25, 26, 27, 28, 29, 30, 31, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43
were read on this motion to AMEND .
Plaintiff Durrell Hibbert’s (“Plaintiff”) motion to amend the summons and complaint
pursuant to CPLR §§ 1024, 3025(b), and 305(c) to substitute the names of the “John/Jane Doe”
defendants with the true identities of certain corrections officers, or alternatively to add these
individuals as new defendants, is denied. For the reasons set forth below, the court finds that
Plaintiff has failed to meet the legal standards for amending a pleading under the CPLR, and his
claims against the proposed defendants are time-barred.
BACKGROUND
On March 12, 2018, Plaintiff, while detained at the Manhattan Detention Complex,
allegedly suffered injuries due to excessive force by several corrections officers, resulting in a
fractured jaw requiring surgery. Plaintiff filed a notice of claim on June 6, 2018, and commenced
this action on June 10, 2019, naming the City of New York and John/Jane Doe defendants. Plaintiff
asserted federal and state claims, including excessive force, failure to intervene, assault, battery,
and negligent hiring and training.
The City disclosed records identifying Captains Travis Griffith and Nigel Graham and
Officers Ronald Reid and Serge Jolimeau as individuals potentially involved in the incident on
January 25, 2024. Plaintiff moved to amend the complaint on July 23, 2024.
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Motion No. 002
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FILED: NEW YORK COUNTY CLERK 11/26/2024 04:32 PM INDEX NO. 155765/2019
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 11/26/2024
DISCUSSION
I. CPLR § 1024
Under CPLR § 1024, plaintiffs may initiate actions against unknown defendants by
designating them as “John/Jane Doe,” provided they satisfy two requirements: first, they must
exercise due diligence in identifying the defendants before the statute of limitations expires; and
second, the delay in naming the defendants must not prejudice the newly identified parties.
A. Lack of Due Diligence
Here, Plaintiff failed to demonstrate due diligence in identifying the unknown defendants
before the statute of limitations expired. Plaintiff elected to forgo oral argument and chose to have
this matter decided on the record before the court. In doing so, Plaintiff relinquished the
opportunity to provide additional information that could illuminate the exercise of due diligence.
Based on this record, Plaintiff has failed to demonstrate such efforts.
Courts have consistently held that plaintiffs must take active steps to ascertain the identities
of unknown defendants, such as seeking pre-action discovery under CPLR § 3102(c) or filing
Freedom of Information Law (“FOIL”) requests (Bumpus v New York City Tr. Auth., 66 AD3d 26,
33 [2d Dept 2009]; Temple v New York Community Hosp., 89 AD3d 926, 928 [2d Dept 2011]).
Merely relying on the City’s discovery process after commencing litigation does not suffice
(Tucker v Lorieo, 291 AD2d 261, 262 [1st Dept 2002]).
Here, the incident occurred on March 12, 2018, and Plaintiff filed suit on June 10, 2019,
the last day of the one-year and ninety-day statute of limitations for state law claims under General
Municipal Law § 50-i. Plaintiff did not seek pre-action discovery or provide any evidence of
investigative efforts during this period. Furthermore, Plaintiff did not move to amend the complaint
until July 23, 2024—over six years after the incident and six months after learning the identities
of the proposed defendants. These delays undermine any claim of due diligence.
B. Prejudice to the Proposed Defendants
Substituting new defendants over six years after the incident would significantly prejudice
defendants’ ability to defend against the claims. The passage of time has likely impacted the
availability of witnesses and evidence, hindering the proposed defendants’ ability to prepare an
adequate defense (Crawford v City of New York, 129 AD3d 554, 555 [1st Dept 2015]). Courts
have repeatedly held that such prejudice precludes substitution under CPLR § 1024 (Scoma v Doe,
2 AD3d 432, 433 [2d Dept 2003]).
II. CPLR § 3025(b): Leave to Amend the Complaint
Under CPLR § 3025(b), leave to amend a pleading should be freely granted absent
prejudice to the opposing party or when the amendment is palpably insufficient or devoid of merit
(Kimso Apts., LLC v Gandhi, 24 NY3d 403, 411 [2014]; McCaskey, Davies & Assoc., Inc. v New
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Motion No. 002
2 of 4
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NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 11/26/2024
York City Health & Hosps. Corp., 59 NY2d 755, 757 [1983]). However, an amendment cannot be
granted if the claims against the new defendants are barred by the statute of limitations.
A. Statutes of Limitations
Here, the state law claims are subject to a one-year and ninety-day limitations period under
General Municipal Law § 50-i, which expired on June 10, 2019. Federal claims under 42 U.S.C.
§ 1983 are subject to a three-year limitations period, which expired on October 26, 2021, after
applying the COVID-19 toll provided by Executive Order 202.8. Plaintiff failed to substitute the
John Doe defendants or move to amend the complaint within these limitations periods. Without a
valid basis for applying the relation-back doctrine under CPLR § 203(f), the proposed amendment
is untimely and barred.
III. CPLR § 203(f): Relation-Back Doctrine
The relation-back doctrine allows claims against new defendants to relate back to the
original complaint if three conditions are met: 1.) The claims arise out of the same conduct,
transaction, or occurrence alleged in the original complaint; 2.) The new defendants are united in
interest with the original defendants; and 3.) The new defendants knew or should have known that,
but for a mistake, they would have been named in the original complaint (Buran v Coupal, 87
NY2d 173, 178 [1995]).
A. Unity of Interest
To establish unity of interest, the new and original defendants must share such a legal
relationship that a judgment against one would bind the other (Higgins v City of New York, 144
AD3d 511, 513 [1st Dept 2016]). While the City may indemnify its employees, the potential for
individual defenses, such as qualified immunity, undermines a finding of unity of interest (Pope v
City of New York, 2023 NY Slip Op 30871[U] [Sup Ct, NY County 2023]; Amaya v Garden City
Irrigation, Inc., 645 F Supp 2d 116, 122 [EDNY 2009]).
Here, the proposed defendants are not united in interest with the City because they may
assert personal defenses that are not available to the City. The City’s potential vicarious liability
does not suffice to establish unity of interest.
B. Notice and Mistake
Likewise, Plaintiff has not demonstrated that the proposed defendants knew or should have
known that they were intended parties. The relation-back doctrine requires evidence that the failure
to name the correct defendants was a genuine mistake rather than a lack of diligence (Temple v
New York Community Hosp., 89 AD3d 926, 928 [2d Dept 2011]). Here, Plaintiff’s lack of efforts
to identify the defendants prior to the expiration of the limitations period precludes application of
the relation-back doctrine.
Plaintiff’s motion to amend the summons and complaint fails to meet the requirements of
CPLR §§ 1024, 3025(b), or 203(f). The lack of due diligence, significant prejudice to the proposed
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Motion No. 002
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FILED: NEW YORK COUNTY CLERK 11/26/2024 04:32 PM INDEX NO. 155765/2019
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 11/26/2024
defendants, and the expiration of the applicable statutes of limitations preclude substitution or
amendment.
Accordingly, it is hereby:
ORDERED that Plaintiff’s motion to amend the summons and complaint is denied in its
entirety.
11/26/2024
DATE HASA A. KINGO, J.S.C.
CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
GRANTED X DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
155765/2019 HIBBERT, DURRELL vs. CITY OF NEW YORK Page 4 of 4
Motion No. 002
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