Bumpus v. Nyc Tr. Auth.
| Decision Date | 07 July 2009 |
| Docket Number | 2008-02691. |
| Citation | 66 A.D.3d 26,2009 NY Slip Op 05737,883 N.Y.S.2d 99 |
| Parties | TRACY BUMPUS, Respondent, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant, and "JANE DOE," Appellant. |
| Court | New York Supreme Court — Appellate Division |
Richard Schoolman, Brooklyn (Kimberly Westcott of counsel), for appellant.
Robert F. Bacigalupi, New York City (Armen Merjian of counsel), for respondent.
A plaintiff's attorney commencing an action against an unknown "Jane Doe" defendant is sometimes between a statutory rock and a hard place in effecting service of process upon the unidentified defendant within the 120-day deadline of CPLR 306-b. This case presents us with one such scenario, where a "Jane Doe" defendant was served with process almost eight months after the filing of the plaintiff's summons and complaint, but "immediately" after the defendant's true identity became known.
The plaintiff commenced this action against the defendants New York City Transit Authority (hereinafter the NYCTA) and its employee, "Jane Doe," as a result of incidents that occurred at the Nostrand Avenue subway station in Brooklyn on July 19, 2006 and July 25, 2006. The plaintiff, a transgender female, alleges that an NYCTA employee, "Jane Doe," uttered a series of discriminatory epithets that caused her to feel harassed and threatened by the employee and others. A summons and complaint against the NYCTA and "Jane Doe" were filed on January 30, 2007. Causes of action were asserted against the NYCTA for negligent training, supervision, and retention of its employees, and against employee "Jane Doe" for wrongful discrimination pursuant to New York City Human Rights Law (Administrative Code of City of NY) § 8-107 (4) (a). Pursuant to CPLR 306-b, service of process was to be effected upon the defendants within 120 days of filing which, in this instance, expired on May 30, 2007.
Service was, in fact, effected upon the NYCTA on January 30, 2007, and is not at issue here. As a result of the plaintiff's complaint, the NYCTA determined that the "Jane Doe" employee was Lorna Smith, against whom a disciplinary hearing was initially scheduled for March 5, 2007, pursuant to the collective bargaining agreement between the NYCTA and the union representing station agents. The disciplinary proceeding was dismissed on May 1, 2007, as a result of the plaintiff's repeated failures to appear as a witness on March 5, 2007, April 5, 2007, and April 26, 2007 despite having been subpoenaed to do so.
By this time, Smith was no longer working at the Nostrand Avenue station. The plaintiff's counsel claims that he first learned of "Jane Doe's" true name as a result of the disciplinary proceeding, of which he had notice. The plaintiff's counsel served a discovery notice on August 24, 2007 requesting, among other information, Smith's home address. On a date in September 2007, the NYCTA served a discovery response that refused to disclose Smith's home address. The plaintiff's counsel claimed that Lorna Smith's name was so common that service of process upon her was impossible absent additional information. In September 2007, the plaintiff's counsel requested, and the NYCTA agreed to provide, a copy of Smith's work location and schedule. Service was then effected upon Smith "immediately" on September 20, 2007, 233 days after the filing of the plaintiff's summons and complaint.
On this record, the caption has not been amended to reflect "Jane Doe's" true identity, but is deemed amended pursuant to CPLR 1024. On November 19, 2007, Smith moved, inter alia, pursuant to CPLR 306-b to dismiss the complaint on the grounds that it was untimely served upon her. She also moved pursuant to CPLR 3211 (a) (2) and Public Authorities Law § 1266 (8) to dismiss the complaint for lack of subject matter jurisdiction. The plaintiff never cross-moved for an extension of time to serve process pursuant to CPLR 306-b.
In the order appealed from, the Supreme Court held that the plaintiff was entitled to an extension of the 120-day service period. The court specifically found that the plaintiff was unaware of Smith's identity upon the filing of the summons and complaint, and that she had demonstrated due diligence in attempting service despite difficulty in finding contact information, locating the transit worker, and the common nature of Smith's last name. The court also denied Smith's motion to dismiss the complaint for lack of subject matter jurisdiction.
For reasons set forth below, we affirm, though on the basis of a somewhat different analysis.
The New York State Legislature has recognized that there are circumstances where a party is ignorant, in whole or in part, of the identity of a person who should be made a party to an action. CPLR 1024 allows for the commencement of an action against an unknown party "by designating so much of his name and identity as is known" (see generally Orchard Park Cent. School Dist. v Orchard Park Teachers Assn., 50 AD2d 462, 467 [1976]). To be effective, a summons and complaint must describe the unknown party in such a manner that the "Jane Doe" would understand that she is the intended defendant by a reading of the papers (see Olmsted v Pizza Hut of Am., Inc., 28 AD3d 855, 856 [2006]; Justin v Orshan, 14 AD3d 492 [2005]; Lebowitz v Fieldston Travel Bur., 181 AD2d 481, 482 [1992]).
The use of CPLR 1024 presents many pitfalls. One pitfall is that parties are not to resort to the "Jane Doe" procedure unless they exercise due diligence, prior to the running of the statute of limitations, to identify the defendant by name and, despite such efforts, are unable to do so (see Hall v Rao, 26 AD3d 694, 695 [2006]; Justin v Orshan, 14 AD3d 492, 492-493 [2005]; Opiela v May Indus. Corp., 10 AD3d 340, 341 [2004]; Tucker v Lorieo, 291 AD2d 261 [2002]; Porter v Kingsbrook OB/GYN Assoc., 209 AD2d 497 [1994]). Any failure to exercise due diligence to ascertain the "Jane Doe's" name subjects the complaint to dismissal as to that party (see Hall v Rao, 26 AD3d at 695; Justin v Orshan, 14 AD3d at 492-493; Opiela v May Indus. Corp., 10 AD3d at 341). A second requirement unique to CPLR 1024 is that the "Jane Doe" party be described in such form as will fairly apprise the party that she is the intended defendant (see City of Mount Vernon v Best Dev. Co., 268 NY 327, 331 [1935]; Olmsted v Pizza Hut of Am., Inc., 28 AD3d at 856; Justin v Orshan, 14 AD3d at 492-493). An insufficient description subjects the "Jane Doe" complaint to dismissal for being jurisdictionally defective (see Lebowitz v Fieldston Travel Bur., 181 AD2d 481, 482-483 [1992]; Reid v Niagara Mach. & Tool Co., 170 AD2d 662 [1991]). A third pitfall unique to CPLR 1024 is its interplay with CPLR 306-b.
Prior to 1992, when actions in the Supreme and County Courts were commenced by the service of process rather than by filing, a party suing a "Jane Doe" defendant was under no particular time deadline for ascertaining the unknown party's identity, other than commencing an action against all defendants prior to the expiration of the relevant statute of limitations (see Luckern v Lyonsdale Energy Ltd. Partnership, 229 AD2d 249, 255 [1997]).1 However, the enactment of CPLR 306-a in 1992 required that actions in Supreme and County Courts be commenced by filing rather than by service (L 1992, ch 216, § 6; see generally Matter of Fry v Village of Tarrytown, 89 NY2d 714, 718-720 [1997]) and upon filing, CPLR 306-b, which was enacted at the same time as CPLR 306-a (L 1992, ch 216, § 7), superimposed the requirement that service of process be effected within 120 days (see CPLR 306-b; see generally Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 100-101 [2001]). The filing of the summons with notice or summons and complaint fixed the point at which an action was commenced for statute of limitations purpose (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 100; Matter of Gershel v Porr, 89 NY2d 327, 330 [1996]).
The enactment of CPLR 306-b placed plaintiffs wishing to commence actions against "Jane Doe" defendants in an unenviable position that did not previously exist. By virtue of CPLR 306-b, plaintiffs were required to ascertain the identity of unknown "Jane Doe" parties, and to serve process upon them, within 120 days from filing. As a practical matter, it is not always easy or even possible for plaintiffs naming "Jane Doe" defendants to meet the service expectations of CPLR 306-b. In any given case involving two or more defendants including an unknown party, a plaintiff may serve process upon the known defendants early in the 120-day service period, and then wait 20 or 30 days for appearances and answers (see CPLR 320 [a]), absent consent extensions or pre-answer motions to dismiss the complaint (see CPLR 3211). Upon the joinder of issue, the plaintiff may then serve discovery demands upon the known parties or upon nonparties for information that may identify the unknown party, and wait for responses which may or may not be fruitful, complied with, or timely. The mechanics of serving process upon known parties, joining issue, demanding discovery, and receiving meaningful responses will, as a practical matter, exhaust, in many cases, all or most of the 120-day period of CPLR 306-b for effecting service upon the newly-identified party. If a "Jane Doe" is the only named defendant in an action, the timely identification of the party's true identity for service of process is even more challenging.
The harshness of CPLR 306-b under these circumstances is ameliorated, in appropriate instances, by the "good cause" and "interest of justice" exceptions to CPLR 306-b. These exceptions have particular utility in actions where, as here, a plaintiff is delayed in effecting service of process by virtue of not knowing the identity of a target defendant.
The 120-day service provision of CPLR 306-b can be...
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