BURBANO v. NEW YORK CITY (2019)

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about April 11, 2018, which, insofar as appealed from as limited by the briefs, granted plaintiff's motion to amend the complaint to substitute a named party in place of defendant Correction Officer Jane Doe, unanimously reversed, on the law, without costs, and the motion denied.

In this action alleging a claim of deliberate indifference under the Eighth Amendment and 42 USC § 1983, plaintiff did not serve the Jane Doe correction officer defendant before the statute of limitations ran.  Although the claims against the intended defendant arise out of the same transaction as the claims alleged in the complaint, plaintiff cannot rely on the relation-back doctrine.  The correction officer and defendant City are not “united in interest” because “the City cannot be held vicariously liable for its employees' violations of 42 USC § 1983” (Higgins v. City of New York, 144 A.D.3d 511, 513, 43 N.Y.S.3d 1 [1st Dept. 2016] ).  Nor can plaintiff's more than two-year delay in seeking to add the new defendant as a party after learning her identity be characterized as a mistake for relation-back purposes (see Goldberg v. Boatmax://, Inc., 41 A.D.3d 255, 256, 840 N.Y.S.2d 570 [1st Dept. 2007];  see also Diaz v. City of New York, 160 A.D.3d 457, 75 N.Y.S.3d 3 [1st Dept. 2018] ).

Plaintiff's reliance on CPLR 1024 is unavailing, as he does not demonstrate diligence in seeking to identify the unknown correction officer prior to the expiration of the statute of limitations (see Goldberg at 256, 840 N.Y.S.2d 570;  Tucker v. Lorieo, 291 A.D.2d 261, 261–262, 738 N.Y.S.2d 33 [1st Dept. 2002];  Holmes v. City of New York, 132 A.D.3d 952, 954, 18 N.Y.S.3d 676 [2d Dept. 2015] ).