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“‘John Doe’ and the Statute of Limitations” May be the Worst Name for a Rock Band

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  • Posted on: Aug 6 2021

Frequently in litigation, a plaintiff commences an action before the identity of all defendants are known.  For example, in mortgage foreclosure actions “John Does” and/or “Jane Does” are named as defendants because there may be unknown individuals or entities in possession of, inter alia, a leasehold contract with respect to, or hold some other interest in, the subject real property.  Indeed, RPAPL 1311 provides a list of “necessary defendants” in a mortgage foreclosure action.  Typically, a process server will inquire as to, and serve, tenants at the mortgaged premises.  Thereafter, and in due course, lender moves to substitute the “John Doe” denomination for the real deendant.  

This procedure is governed by CPLR 1024, which provides:

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 name and identity as is known. If the name or remainder of the name becomes known all subsequent proceedings shall be taken under the true name and all prior proceedings shall be deemed amended accordingly.

The purpose of CPLR 1024 “is to permit a cause of action known to exist to be brought against a person whose name only is unknown.”  Orchard Park Central School Dist. V. Orchard Park Teachers Ass’n, 50 A.D.2d 462 (4th Dep’t 1976) (citation omitted).  Stated differently, CPLR 1024 permits “a party who is ignorant of the name or identity of one who may properly be made a party to proceed by designating so much of his identity as is known, [however] a summons served in a ‘John Doe’ form is jurisdictionally sufficient only if the actual defendants are adequately described and would have known, from the description in the complaint, that they were the intended defendants”.  Lebowitz v. Fieldston Travel Bureau, Inc., 181 A.D.2d 481 (1st Dep’t 1992) (citations and internal quotation marks omitted).  The jurisdictional sufficiency of a summons is significant because a jurisdictionally sufficient summons “may serve to toll the statute of limitations and provide the plaintiff with the 60-day extension under CPLR 203 (b) (5) (i).”  Lebowitz, 181 A.D.2d at 482 (citation omitted).

In Lebowitz, a premises liability case, a summons with notice was served the day before the expiration of the applicable statute of limitations.  The summons, which listed all defendants as “John Does,” “misidentified” the location of the incident and was “silent as to the date of the accident.”  “Within sixty days, but after the expiration of the three-year statute of limitations, defendants were served with a corrected summons which contained their names,” and the correct location and date of the accident.  Lebowitz, 181 A.D.2d at 482.  The defendant’s motion to “amend her answer and to dismiss the complaint on the ground that the original summons was insufficient to toll the statute of limitations and that the action was therefore time-barred,” was denied by supreme court.  The First Department, recognizing the mistakes in the original summons, stated:

This summons was therefore jurisdictionally defective and did not serve to toll the statute of limitations and provide plaintiff with the 60 day extension under CPLR 203(b)(5)(i).  The summons thereafter served upon defendants was thus untimely served. Accordingly, we grant defendant[‘s] motion to amend her answer to include the affirmative defense of statute of limitations and, on the basis of such defense, dismiss the action as to her as time-barred.

Lebowitz, 181 A.D.2d at 483 (citation omitted).

Moreover, a plaintiff moving to amend the caption of an action to substitute the “John Doe” designation for an actual defendant after the expiration of the statute of limitations, must demonstrate “that he conducted a diligent inquiry into the actual identities of the intended defendants before the expiration of the statutory period.”  Goldberg v. Boatmax://, Inc., 41 A.D.3d 255, 256 (1st Dep’t 2007) (citation omitted).  See also, Burbano v. New York City, 172 A.D.3d 575, 576 (1st Dep’t 2019).  

Further, “[w]hen an originally-named defendant and an unknown ‘Jane Doe’ or ‘John Doe’ party are united in interest, i.e. employer and employee, the later-identified party may, in some instances, be added to the suit after the statute of limitations has expired pursuant to the ‘relation-back’ doctrine of CPLR 203(f), based upon postlimitations disclosure of the unknown party’s identity.”  Holmes v. City of New York, 132 A.D.3d 952 (2nd Dep’t 2015).  In Holmes, the plaintiff was injured by police during an arrest.  He brought a civil action against the officer that arrested him but named him as “John Doe”.  Holmes was found not guilty during a criminal trial and claims that he first learned the name of the arresting officer during the criminal trial.  After the criminal trial, and after the expiration of the one-year-and-ninety-day statute of limitations applicable to the arresting officer, Holmes moved to substitute the real name of the arresting officer.  The Second Department affirmed supreme court’s denial of the motion finding that Holmes failed to demonstrate the necessary diligence in attempting to ascertain the identity of the arresting officer prior to the expiration of the statute of limitation because, inter alia, “[t]here is no indication in the record that the plaintiffs engaged in any pre-action disclosure or made any Freedom of Information Law requests.”  Holmes, 132 A.D.3d at 954 (citations omitted).

The application of CPLR 1024 was at issue in Wilmington Trust N.A. v. Shasho, decided by the Second Department on August 4, 2021.  Wilmington was a mortgage foreclosure action commenced by lender against Elliot and Esther Shasho.  Elliot, who was named in the summons, was duly served.  Esther, who was named as “John Doe” was also served.  Proof of service on Elliot and Esther were never filed.  Neither Elliot nor Esther answered the complaint.  Lender moved to amend the caption to substitute Esther for “John Doe,” to deem the proofs of service timely filed nunc pro tunc, for a default judgment and for an order of reference.  Elliot and Esther cross-moved pursuant to CPLR 3215(c) to dismiss the complaint or, alternatively, for leave to file an answer.  [Editor’s note – this Blog has addressed CPLR 3215(c) [here], [here], and [here].]  Supreme court granted lender’s motion and denied the cross-motion.  As to the application of CPLR 1024, the Court reversed and stated:

In order to employ the procedural “Jane Doe” or “John Doe” mechanism made available by CPLR 1024, a plaintiff must show that he or she made timely efforts to identify the correct party before the statute of limitations expired. Yet, 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. Any failure to exercise due diligence to ascertain the “Jane Doe’s” name subjects the complaint to dismissal as to that party.

Here, the Supreme Court should not have granted that branch of the plaintiff’s motion which was for leave to amend the caption to substitute Esther for the defendant “John Doe.” The court erred in applying the “John Doe” designation authorized by CPLR 1024 and the relation-back doctrine of CPLR 203(c) to bar application of the statute of limitations, because the plaintiff failed to establish that it made diligent efforts to ascertain the unknown party’s identity prior to the expiration of the statute of limitations Concomitantly, the court should have denied that branch of the plaintiff’s motion which was for leave to enter a default judgment against Esther.  (Citations and internal quotation marks omitted.)

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