Moran v. Cnty. of Suffolk

• Decision Date: 16 December 2020
• Docket Number: 2017–05280,Index No. 16158/15
• Parties: Michael MORAN, appellant, v. COUNTY OF SUFFOLK, et al., respondents.
• Court: New York Supreme Court — Appellate Division

189 A.D.3d 1219

138 N.Y.S.3d 92

Michael MORAN, appellant,

v.COUNTY OF SUFFOLK, et al., respondents.

2017–05280

Index No. 16158/15

Supreme Court, Appellate Division, Second Department, New York.

Argued—November 12, 2019

December 16, 2020

Bauman & Kunkis, P.C. (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn and Lauren E. Bryant ], of counsel), for appellant.

ALAN D. SCHEINKMAN, P.J., COLLEEN D. DUFFY, BETSY BARROS, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Daniel Martin, J.), dated April 12, 2017. The order granted the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against the defendant Robert Bodenmiller as time barred and to dismiss the cause of action against the defendant County of Suffolk alleging negligent hiring and training for failure to state a cause of action, and pursuant to CPLR 3024(a) to compel the plaintiff to provide a more definite statement as to the remaining causes of action asserted against the defendant County of Suffolk.

ORDERED that the appeal from so much of the order as granted that branch of the defendants' motion which was pursuant to CPLR 3024(a) to compel the plaintiff to provide a more definite statement is dismissed, without costs or disbursements, as no appeal lies as of right therefrom (see CPLR 5701[b][2] ), and we decline to grant leave to appeal; and it is further,

ORDERED that the order is affirmed insofar as reviewed, without costs or disbursements.

On August 4, 2010, the plaintiff allegedly was shot by Police Officer Robert Bodenmiller, without justification, in a restaurant in West Babylon. On August 1, 2011, the plaintiff commenced an action in the United States District Court for the Eastern District of New York (hereinafter the federal action) against the County of Suffolk and the John Doe officer alleged to have shot the plaintiff, whose identity was not known to the plaintiff at that time. In that action, the plaintiff asserted a cause of action alleging a violation of 42 USC § 1983 based on the use of excessive force, and state law claims alleging, inter alia, negligent hiring and training, and assault and battery. Thereafter, the plaintiff learned the identity of the John Doe defendant as Bodenmiller. On November 8, 2011, the plaintiff effected service pursuant to CPLR 308(2) upon "John Doe, the person intended to be the police officer who shot plaintiff, n/k/a Robert Bodenmiller," and thereafter deposed him on July 10, 2013.

In an order dated March 24, 2015, the District Court, inter alia, granted that branch of the County's motion which was for summary judgment dismissing the federal cause of action asserted against the John Doe defendant as time-barred, and declined to exercise supplemental jurisdiction over various state law causes of action. The District Court determined, among other things, that the plaintiff failed to exercise due diligence to ascertain the identity of the John Doe defendant as required to apply CPLR 1024, and thus, "an amendment to substitute Bodenmiller for the John Doe Defendant would not relate back to the filing date of Plaintiff's Complaint under federal or state law."

On September 16, 2015, the plaintiff commenced the instant action in the Supreme Court, Suffolk County, against the County and Bodenmiller, alleging, inter alia, negligent hiring and training, and assault and battery. Thereafter, the defendants moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against Bodenmiller as time-barred and to dismiss the cause of action asserted against the County alleging negligent hiring and training for failure to state a cause of action, and pursuant to CPLR 3024(a) to compel the plaintiff to provide a more definite statement as to the remaining causes of action asserted against the County. In an order dated April 12, 2017, the Supreme Court granted the defendants' motion. The plaintiff appeals.

Under New York's commencement-by-filing system, "a claim asserted against unknown parties pursuant to CPLR 1024 is deemed to be interposed for Statute of Limitations purposes when the ‘John Doe’ summons with notice is filed with the clerk of the court" ( Luckern v. Lyonsdale Energy Ltd. Partnership, 229 A.D.2d 249, 254, 654 N.Y.S.2d 543 ; see Bumpus v. New York City Tr. Auth., 66 A.D.3d 26, 30–31, 883 N.Y.S.2d 99 ). Pursuant to CPLR 1024, "[a] party who is ignorant, in whole or in part, of the name or identity of a person who may properly be made a party, may proceed against such person as an unknown party by designating so much of his [or her] name and identity as is known." However, a plaintiff cannot rely on CPLR 1024 unless he or she "exercise[s] due diligence, prior to the running of the statute of limitations, to identify the defendant by name and, despite such efforts, [is] unable to do so," and "[a]ny failure to exercise due diligence to ascertain the ‘Jane Doe's’ name subjects the complaint to dismissal as to that party" ( Bumpus v. New York City Tr. Auth., 66 A.D.3d at 29–30, 883 N.Y.S.2d 99 ).

Here, the plaintiff argues that the claims asserted against the John Doe defendant in the federal action were timely commenced pursuant to CPLR 1024, and thus, the claims asserted against Bodenmiller in this action were timely commenced within six months after the dismissal of the claims in the federal action pursuant to CPLR 205(a). However, in the federal action, the District Court determined, inter alia, that the plaintiff failed to exercise due diligence to ascertain the identity of the John Doe defendant as required to apply CPLR 1024, and therefore the claims asserted against the John Doe defendant did not relate back to the filing date of the complaint prior to the expiration of the statute of limitations.

"Collateral estoppel, or issue preclusion, is ‘a component of the...