INDEX NO. 155451/2017
`FILED: NEW YORK COUNTY CLERK 05/07/2018 05:05 PM
`NEW YORK
`COUNTY
`CLERK
`FILED:
`03/34/2
`18¤09f3"21Ab
`NYSCEF
`NYSCEF DOC. NO. 62
`RECEIVED NYSCEF: 05/07/2018
`DOC.
`NO.
`50
`RECEIVED
`NYSCEF:
`03/30/2018
`OF NEW YORK
`SUPREME
`COURT OF THE STATE
`NEW YORK
`COUNTY
`
`PRESENT: HON.W. FRANC PERRY, J.S.C.
`LINDA KlRSCH
`
`Plaintiff
`
`- v -
`LINCOLNCENTERFORTHE PERFORMINGARTS,INC.,
`AMERICANBALLET THEATRE,METROPOLITANOPERA
`HOUSE,"JOHNDOE",asfurtherdescribedin annexedcomplaint,
`andBrianMcCalister.
`Defendants
`Thefollowingpaperswerereadonthismotionto ExtendTime
`Noticeof Motion/Petition/O.S.C.- Affidavits- ExhibitsA throughE
`Noticeof Cross-Motionto Dismiss/AnsweringAffidavits- ExhibitsA throughE
`ReplyingAffidavits
`
`PART 23
`
`INDEXNO. 155451/2017
`MOT.DATE March8,2018
`
`MOT.SEQ.NO.002
`
`I
`ECFSDOCNo(s).
`ECFSDOCNo(s). 2
`ECFSDOCNo(s). 3
`
`In this action, plaintiff alleges that she sustained injuries as a result of an incident on June
`.Iune 15, 2016
`at Lincoln Center during a performance of Swan Lake. Plaintiff alleges that a Caucasian male individual
`In Motion Se-
`assaulted and battered her from behind her seatwith a karate chop to both shoulders.
`quence No. 002 plaintiff seeksan order pursuant to CPLR §306-b, granting an extension of time to iden-
`tify and serve an additional "JOHN DOE" defendant. Defendant, Brian McCalister
`(formerly JOHN
`DOE), cross-moves seeking to dismiss the action pursuant to CPLR 321l(a)(5) and (8) and 1024.
`
`FACTUAL BACKGROUND
`
`and CONTENTIONS
`
`The relevant facts are largely undisputed. The incident giving rise to the complaint occurred on
`
`June.Iune 15, 2016. On June 14, 2017, one day prior to the expiration of the one year statute of limitations
`applicable to intentional
`torts, plaintiff
`filed a summons and complaint, which included as a defendant,
`John Doe, as further described in the complaint. All parties agree that pursuant to CPLR 306-b, the 120-
`day deadline for service to be effectuated expired on October 12, 2017.
`
`filed its Answer to the Sum-
`On October 2, 2017, Defendant, American Ballet Theatre ("ABT"),
`filed a Supplemental
`mons and Complaint.
`(NYSCEF Doc. No. 38). On October 9, 2017, plaintiff
`identifying Brian McCalister as a former "JOHN DOE" defendant.
`Summons and Amended Complaint,
`(NYSCEF Doc. No. 22).1 Additionally, all parties agree that on October 10, 2017 plaintiff caused the
`(NYSCEF Doc. No.
`to be served upon McCalister.
`Supplemental Summons and Amended Complaint
`23).
`
`On October 25, 2017, attorneys for McCalister wrote to plaintiff's counsel purporting to reject the
`Supplemental Summons and Amended Complaint served on October 10, 2017, because plaintiff had not
`"obtained leave of Court as required to name Mr. McCalister as a defendant in this case" and as such,
`
`' OnOctober9.2017,theactionwaspartiallydiscontinuedwith prejudiceasagainstdefendants,LincolnCenterfor thePerformingArts,
`Inc.,MetropolitanOperaAssociation,Inc.,s/h/aMetropolitanOperaHouse,andtheAmericanBalletTheatre.by Stipulation.(NYSCEF
`Doc.No.21).
`Page 1 of 6
`1lof
`6
`
`

`

`03/30/2Ò181509¼121
`INDEX NO. 155451/2017
`FILED: NEW YORK COUNTY CLERK 05/07/2018 05:05 PM
`CLERK
`COUNTY
`: NEW YORK
`FILED
`AN
`NYSCEF DOC. NO. 62
`RECEIVED NYSCEF: 05/07/2018
`RECEIVED
`NYSCEF
`03/30/2018
`NYSCEF:
`DOC.
`NO.
`50
`McCalister claimed that the "Supplemental Summons and Amended Complaint are nullities."
`(NYSCEF Doc. No. 41).
`
`On October 10, 2018 plaintiff
`filed the instant motion, seeking an extension of time to identify and
`serve an additional "John Doe" defendant, claiming that additional discovery is needed to ascertain
`whether McCalister,
`in fact, attended the presentation of Swan Lake wherein plaintiff alleges she was
`chopped"
`"karate chopped" from behind and to determine whether McCalister resold or gave away the two subject
`is seeking an extension of time to identify and serve the remain-
`tickets to another individual. Plaintiff
`ing John Doe defendant, in the interest of justice.
`Defendant McCalister opposes plaintiff's motion and cross moves seeking to dismiss the action pur-
`suant to CPLR 3211(a)(5) and (8), on the basis of statute of limitations and lack of personal jurisdiction.
`Defendant contends that becausethe amended complaint
`the court lacks personal jurisdiction
`is a nullity,
`over McCalister and now that the statute of limitations has expired, the cross motion should be granted.
`
`in opposition to defendant's cross motion, argues that the Supplemental Summons and
`Plaintiff,
`Amended Complaint were filed and served "as of right", and that she exercised diligent efforts seeking
`the identity of "John Doe" and immediately substituted McCalister in place of the "John Doe" defend-
`ant, as soon as his identity became known. Plaintiff argues that she is not required to and is not seeking
`leave to amend pursuant to CPLR §1024, as she has already supplemented her summons and amended
`her complaint as to McCalister, as of right and as such, defendant's argument lacks merit. Additionally,
`plaintiff argues that there is no lack of due diligence in identifying "John Doe" and that the casescited
`by defendant are inapposite and factually distinguishable.
`
`Finally, plaintiff contends that the claims asserted against McCalister are timely and meritorious.
`Plaintiff alleges that her cause of action arises from an intentional assault and battery by a Caucasian
`male who "karate chopped" plaintiff
`to both shoulders from behind her seat, and that she has demon-
`strated that McCalister was the individual who purchased the seat located behind ber on the date and
`time the incident
`is alleged to have occurred.
`Defendant, in Reply, contends that even if the court accepts plaintiff's "late arguments" relative to
`her compliance with CPLR 1024, plaintiff has not made an adequate showing of diligent efforts to iden-
`tify "John Doe" prior to the expiration of the statute of limitations to warrant relief under the section and
`is appropriate under CPLR 321l(a)(8). For the reasons that follow, defendant's cross-
`thus, dismissal
`motion is denied and plaintiff's motion is granted.
`
`STANDARD OF REVIEW and ANALYSIS
`
`1. Defendant's cross motion to dismiss.
`C.P.L.R. 1024, entitled "Unknown Parties," provides as follows:
`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.
`
`N.Y. C.P.L.R. 1024 (McKinney 2017)
`
`5'eP
`
`'I-A
`
`

`

`INDEX NO. 155451/2017
`FILED: NEW YORK COUNTY CLERK 05/07/2018 05:05 PM
`CLERK
`COUNTY
`NEW YORK
`18D09
`03 / 30/2
`Ï&2
`AN
`FILED:
`NYSCEF DOC. NO. 62
`RECEIVED NYSCEF: 05/07/2018
`NYSCEF
`RECEIVED
`DOC.
`NO.
`50
`NYSCEF:
`03/30/2018
`
`Where amendment is sought under CPLR 1024, no formal motion is necessary. Woodburn Court
`Assocs. I v Wingate Mgmt. Co., 243 A.D.2d 1043, 1045 (3d Dept. 1997) (no motion was required.under
`CPLR 1024 to add Hartford Fire Insurance Company as a defendant after its identity was ascertained);
`see also Siegel, NY Prac § 188 (4th ed.); see also, Voto v Sutphen, 2011 NY Misc. LEXIS 4423 (Sup.
`Ct. Nassau County, 2011) (once the party's complete identity is ascertained, the plaintiffs are not re-
`quired to seek court approval so as to amend the caption and insert the proper name). New York courts
`have interpreted this section to permit John Doe substitutions nunc pro tune. SeeHogan v Fischer 738
`F.3d 509, 518 (2d Cir. 2013), citing, Bumpus v N.Y C. Transit Auth., 66 A.D.3d 26 (2d Dep't 2009); Vic-
`tor Auto Parts. Inc. v Cuva, 148 Misc. 2d 349 (Sup. Ct. Monroe Cnty. 1990); Wilson v 30 Broad St. As-
`socs., L P , 178 Misc. 2d 257, (Civ. Ct. N.Y. County. 1998).
`
`Contrary to defendant's contention, plaintiff was not required to seek leave of court to substitute
`McCalister in place of "John Doe", as the record demonstrates that plaintiff made a genuine effort to as-
`certain, in a timely manner, the identity of defendant McCalister prior to the expiration of the statute of
`limitations. Opiela v .MayMay Indus. Corp., 10 AD3d 340 (1stDept. 2004) (plaintiff may amend a complaint
`to reflect the true names of defendants in question, where such parties were fairly apprised that they are
`the intended defendants and are not prejudiced thereby).
`
`Defendant's contention that plaintiff has not demonstrated diligent efforts to identify McCalister
`Indeed, on No-
`is simply not borne out by the record.
`prior to the expiration of the statute of limitations,
`vember 14, 2016, a full seven months before the expiration of the one-year statute of limitations, plain-
`tiff's counsel sent a letter to Lincoln Center requesting the identity of the patron who purchased the tick-
`I'et for seatN#11;
`in that letter, it was also noted that the incident had been reported to Metropolitan
`counsel sent a
`(NYSCEF Doc. No. 45). Thereafter, on November 16, 2016, plaintiff's
`Opera security.
`indicating that she had learned that the ticket for the performance in question was given to
`letter to ABT,
`ABT.
`(NYSCEF Doc. No. 46).
`In addition, after the action was timely commenced naming a "John Doe" defendant, on August 23,
`2017, plaintiff served discovery notices upon the corporate defendants; on October 9, 2017, corporate
`defendants responded to plaintiff's discovery notice and identified Brian McCalister as the individual
`(NYSCEF Doc. No. 20).
`who purchased seatsN9-N11 located behind plaintiff.
`Immediately thereafter,
`on October 9, 2017, before the expiration of the statute of limitations,
`in accordance with CPLR §l024,
`filed a supplemental summons and amended complaint substituting Brian McCalister as a de-
`plaintiff
`In addition, on October 9, 2017, plaintiff also amended the com-
`fendant.
`(NYSCEF Doc. No. 22).
`plaint, as of right, pursuant to CPLR 3025(a), less than twenty days after ABT served and filed its An-
`swer on October 2, 2017, to assert an additional allegation that McCalister "assaulted and battered" her.
`(NYSCEF Doc. No. 22, ¶7).
`
`CPLR §1024 allows a party to amend a pleading to replace an unknown party, designated as such at
`the pro-
`the time an action is commenced, with the party's name once such party is identified. Notably,
`ponent of such an amendment must establish that the defendant, who at the time an action was com-
`menced could not be identified, was "named or described in such form as [would] properly identify the
`defendant and give notice of opportunity to defend". Rivera v City of New York, 56 Misc. 3d 1215(A)
`(Sup. Ct. Bronx County, 2017), citing, Goldberg v .Boatmax://, Inc., 41 AD3d 255, 256 (ISSDept. 2007).
`Boarmax:I/
`Finally, the proponent of a CPLR §1024 amendment must also establish that diligent efforts to identify
`an unknown defendant were made prior to commencement of the action to no avail. Rivera v City of
`New York, 56 Misc. 3d 1215(A) (Sup. Ct. Bronx County, 2017), citing, Henderson-Jones v City of Ne
`York. 87 AD3d 498, 506 (1stDept. 2011).
`
`Page 3 g'6
`
`j
`
`

`

`plaintiff
`INDEX NO. 155451/2017
`FILED: NEW YORK COUNTY CLERK 05/07/2018 05:05 PM
`CLERK
`COUNTY
`NEW YORK
`03 / 30/2¹018D09¼&2
`AN
`FILED:
`NYSCEF DOC. NO. 62
`RECEIVED NYSCEF: 05/07/2018
`NYSCEF
`RECEIVED
`DOC.
`NO.
`50
`NYSCEF:
`03/30/2018
`Here, there can be no doubt that plaintiff has satisfied the requirements of CPLR §1024. Plaintiff
`has established that at the time the action was commenced she could not identify the persons seated be-
`hind her at the Swan Lake performance and as such availed herself of CPLR §1024, naming "John Doe"
`as further described in the annexed complaint.
`It is obvious that plaintiff's efforts to identify McCalister
`were diligent as she successfully identified him prior to the expiration of the statute of limitations and
`upon identifying him, immediately substituted McCalister for the "John Doe" defendant described in the
`complaint as "a Caucasian male individual, who on June 15, 2016 at approximately 3:30 p.m., assaulted
`from her seat #M11 behind with a 'karate chop' to both shoulders at the prem-
`and battered the plaintiff
`ises located at 30 Lincoln Center Plaza, New York, New York as set forth below, during a performance
`of 'Swan Lake'".
`(NYSCEF Doc. No. 18).
`
`In accordance with the plain language of §l024, once "the name becomes known all subsequent
`proceedings shall be taken under the true name and all prior proceedings shall be deemed amended ac-
`cordingly." N.Y. C.P.L.R. 1024 (McKinney 2017). While one can argue that plaintiff's amendment "as
`of right" pursuant to CPLR 3025(a), to assert an additional allegation that McCalister "assaulted and bat-
`tered" her was unnecessary, given the procedural mechanism afforded under CPLR §1024, it does not
`vitiate the fact that McCalister was properly substituted in place of the "John Doe" defendant, prior to
`the expiration of the applicable statute of limitations.
`
`Based on this record, plaintiff did not need to seek leave of court to substitute McCalister
`in place of
`the previously described "John Doe" defendant. Woodburn Court Assocs. I v Wingate Mgmt. Co., 243
`A.D.2d at 1045. Defendant's attempt to obfuscate the issue by citing legal authority that is plainly dis-
`tinguishable from the present case, does not alter the plain language of CPLR §1024. Moreover, be-
`known" at the time the ini-
`cause plaintiff had adequately described "so much of his. . . identity as [was]
`tial summons and complaint was filed on June 14, 2017, one day prior to the expiration of the statute of
`limitations, defendant cannot demonstrate prejudice.
`ICD Group Int'l Ltd. v Achidov, 284 AD2d 244
`(l" Dept. 2001) (Where Court held that a party could properly amend a caption from "John Doe" to the
`name of the defendant, where the defendant was fairly apprised that it was the party the action was in-
`tended to affect, and where no prejudice to the defendant was shown.); Mia Terra Realty Corp. v Sloan,
`57 Misc. 3d 141(A) (App. Term, First Department, 2017).
`Here, plaintiff properly substituted McCalister in place of the "John Doe"
`defendant, immediately
`upon learning of his identity and prior to the expiration of the statute of limitations. Her diligent efforts,
`in the form of letters and inquiry to the named corporate defendants, a full seven months prior to the
`statute of limitations expiring, obviously were successful, as the efforts resulted in her identification of
`McCalister as the patron who purchased the seatsbehind her for the June 15, 2016, afternoon perfor-
`mance of Swan Lake at Lincoln Center. As noted, defendant is unable to establish any prejudice result-
`in place of the "John Doe" de-
`ing from the timely amendment of the complaint
`to substitute McCalister,
`fendant. Plaintiff properly amended the complaint
`in accordance with the requirements of CPLR §l024.
`Accordingly, McCalister's motion to dismiss the complaint
`is denied.
`
`"John Doe" defendant.
`2. Plaintiff's motion to extend time to serve additional
`Plaintiff seeks an extension of time to serve the additional "John Doe"
`defendant, in the interest of
`justice. Plaintiff contends that additional
`time is needed in order for plaintiff
`to determine whether
`McCalister attended the Swan Lake performance or whether he gave his tickets to somebody else or
`whether be resold or gave away the two subject tickets to another individual. C.P.LR. 306-b provides in
`relevant part that "[i]f service is not made upon a defendant within the time provided in this section [120
`days], the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon
`
`

`

`plaintiff
`plaintiff
`30/2t0181509¼121
`INDEX NO. 155451/2017
`FILED: NEW YORK COUNTY CLERK 05/07/2018 05:05 PM
`CLERK
`COUNTY
`: NEW YORK
`FILED
`03 /
`AN
`NYSCEF DOC. NO. 62
`RECEIVED NYSCEF: 05/07/2018
`NYSCEF
`RECEIVED
`03/30/2018
`NYSCEF:
`DOC.
`NO.
`50
`good cause shown or in the interest of justice, extend the time for service." N.Y. C.P.L.R. 306-b
`(McKinney 2012).
`It is well settled that the determination to grant "[a]n extension of time for service is a matter within
`the court's discretion". Leader v Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 101, (2001). The Court of
`Appeals has explained that the "interest of justice" standard "requires a careful judicial analysis of the
`factual setting of the case and a balancing of the competing interests presented by the parties,"
`including
`"diligence [in attempting to effect service], or lack thereof, . . . expiration of the Statute of Limitations,
`the meritorious nature of the cause of action, the length of delay in service, the promptness of a plain-
`tiff s request for the extension of time, and prejudice to defendant." Leader v Maroney, Ponzini & Spen-
`cer, 97 N.Y.2d at 105-106. Here, the court has determined that plaintiff employed diligent efforts that
`in place of the "John Doe" defendant. Similarly,
`led to the identification and substitution of McCalister,
`plaintiff promptly filed a motion, prior to the expiration of the statute of limitations,
`to extend her time
`to identify and substitute the additional "John Doe" defendant.
`Here, plaintiff alleges that she was assaulted from behind, during a performance of Swan Lake at
`Lincoln Center. As set forth above, plaintiff's diligent efforts led to the identification and substitution of
`defendant McCalister, prior to the expiration of the one-year statute of limitations. Certainly,
`it is in the
`"interest of justice"
`to allow plaintiff an extension of time to determine whether McCalister can identify
`the additional person who sat behind plaintiff during the performance, and/or additional relevant infor-
`to substitute a named defendant in place of the "John Doe" defendant.
`mation to allow plaintiff
`filed her motion to extend the time to identify and serve the additional "John Doe" defend-
`Plaintiff
`ant, immediately upon learning of McCalister's identity and prior to the expiration of the statute of limi-
`tations, as such, plaintiff has met her burden to obtain an "interest of justice" extension. Chan v. Zou-
`barev, 157 AD3d 8511 (2ndDept. 2018); Deutsche Bank, AG v. Vik, 149 A.D.3d 600 (ISt Dept. 2017);
`Redmond v.Jamaica Hosp. Med. Ctr, 29 AD3d 768 (2ndDept. 2006) (Generally, where a plaintiff has
`made diligent efforts to discover the identities of the unknown defendants within 120 days, an extension
`of time to serve those defendants is appropriate, where there is no prejudice to defendants).
`
`As the court has found no prejudice to McCalister,
`it would be an improvident exercise of this
`court's discretion to deny plaintiff's motion to extend her time for the service of the summons and com-
`plaint upon the additional "John Doe"
`defendant; to do so would deprive plaintiff
`the opportunity to
`prove her causesof action against both defendants. Gabbar v. Flatlands Commons, LLC, 150 AD3d
`1084 (2ndDept. 2017).
`
`CONCLUSION
`PlaintifFs motion to extend the time for service upon the additional "John Doe" defendant is grant-
`ed, in the interest of justice. Accordingly,
`it is hereby,
`
`ORDERED that defendant McCalister's Cross Motion to Dismiss is denied in its entirety; and it is
`further
`
`ORDERED that defendant McCalister is directed to serve an answer to the complaint within 20
`days after service of a copy of this order with notice of entry; and it is further
`
`5pag>e(6Q 6
`
`

`

`INDEX NO. 155451/2017
`FILED: NEW YORK COUNTY CLERK 05/07/2018 05:05 PM
`CLERK
`COUNTY
`NEW YORK
`03/130/2
`FILED?
`181509f
`&21AN
`NYSCEF DOC. NO. 62
`RECEIVED NYSCEF: 05/07/2018
`NY S CE F DOC . NO.
`RE CE IVE D NY S CE F:
`50
`03/30/2018
`ORDERED that Plaintiff's Motion, SequenceNo. 002 is granted and the deadline for substituting
`the additional "John Doe" defendant, as described in the annexed complaint,
`is extended by 120 days to
`July 26, 2018.
`Any relief not expressly addressedherein has nonetheless been considered and is hereby expressly
`denied and this constitutes the decision and order of the Court.
`
`Dated: March 28, 2018
`New York New York
`
`HON.W. FRANC PERRY, J.S.C.
`
`1. Check one:
`
`O CASE DISPOSED
`
`IZ NON-FINAL DISPOSITION
`
`2.Checkasappropriate: Motion is
`3.Checkif appropriate:
`
`OGRANTED 0 DENIED 0 GRANTED IN PART 0 OTHER
`USETTLE ORDER 0 SUBMIT ORDER O DO NOT POST
`OFIDUCIARY APPOINTMENT O REFERENCE
`
`Pap~y6atf6
`
`