Paul Schimmel & Port Salem Pharmacy Corp. v YouTube, Inc. & YouTube, LLC
Annotate this CaseDecided on January 30, 2012
Supreme Court, Nassau County
Paul Schimmel & Port Salem Pharmacy Corp., Plaintiffs,
against
YouTube, Inc. & YouTube, LLC, Defendants.
022944/10
Counsel for the Plaintiffs:
Schiller Law Group, P.C.
B. Shamus O'Donniley, Esq.
130 W. 42nd Street, 25th Floor
New York, New York 10036
(212) 768-8700
Randy Sue Marber, J.
Papers Submitted:
Notice of Motion..................................x
Upon the foregoing papers, the unopposed motion by the Plaintiffs seeking leave to: (1) amend the caption to add parties, JOHN DOE and JANE DOE; (2) to discontinue the action against the Defendants, YOUTUBE, INC. & YOUTUBE, LLC; (3) to file an amended Summons and [*2]Amended Complaint, and; (4) to extend the time for Plaintiffs to serve the amended Summons and Complaint is determined as hereinafter provided.
In this action, the Plaintiffs, PAUL SCHIMMEL & PORT SALEM PHARMACY CORP., assert that as a result of the posting of defamatory videos on YOUTUBE in or about October 2008, by the Defendants, they have suffered damages. The Plaintiffs allege that the videos bear the caption or title "CHEATING PHARMACIST" and identifies the Plaintiff, PAUL SCHIMMEL, and names the Plaintiff, PORT SALEM PHARMACY CORP. in large print thereby implying that both Plaintiffs are "cheaters" and therefore are dishonest, disreputable and should not be trusted. The Plaintiffs allege that the Defendants, JOHN DOE and JANE DOE, posted the videos on YOUTUBE with the intent to defame the Plaintiffs. As a result, the Plaintiffs allege they have lost business and suffered damages of not less than $5,000,000.
The Plaintiffs' counsel in his Affirmation in support of the instant application indicates that the Plaintiffs seek to voluntarily discontinue the action as against the current Defendants, YOUTUBE, INC. & YOUTUBE, LLC. The action was commenced upon the filing of the Summons and Complaint and the purchase of an Index Number from the Nassau County Clerk on December 15, 2010 as evidenced by a copy of the Summons and Complaint attached to the Plaintiffs' motion as Exhibit "A". Thereafter, the Plaintiffs' counsel indicates, that issue was never joined and the Summons and Complaint was never served.
Inasmuch as service upon the Defendants, YOUTUBE, INC. & YOUTUBE, LLC, was never effectuated, the branch of the Plaintiffs' motion for seeking to discontinue the action as against the Defendants, YOUTUBE, INC. & YOUTUBE, LLC, must be DENIED and the action against the Defendant, YOUTUBE, INC. & YOUTUBE, LLC, is DISMISSED.
The Plaintiffs' counsel request to amend the caption to add Defendants, JOHN DOE and JANE DOE is presumably made pursuant to CPLR § 1024. To make use of this designation, the Plaintiff must have first demonstrated that he has exercised "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". Bumpus v. New York City Transit Authority, 66 AD3d 26 (2d Dept. 2009) Any failure to exercise due diligence to ascertain the proposed fictitious person's name subjects the complaint to dismissal as to that party. CPLR § 1024 also requires that the fictitious party be described in such form as will fairly apprise the party that he or she is the intended defendant. Lastly, the use of CPLR § 1024 is intertwined with CPLR § 306-b. In this instance, the Plaintiff has failed to establish good cause and that extending the 120- day service provision of CPLR § 306-b would be in the interest of justice, since the Plaintiff has failed to demonstrate any diligent effort to effect service nor any promptness in pursuing this request.
Accordingly, the branch of the Plaintiffs' motion seeking to extend the Plaintiffs' time to serve the amended Summons and Complaint herein is DENIED.
The decision whether to allow a pleading to be amended rests within the sound discretion of the court. Pagan v. Quinn, 51 AD3d 1299 [3rd Dept. 2008]; Trataros Const. Inc. v. New York City School Const. Authority, 46 AD3d 874 [2nd Dept. 2007]. Leave to amend a pleading will be freely granted where the proposed amendment is not palpably insufficient or patently devoid of merit, and will not prejudice or surprise the opposing party. Shovak v. Long Island Commercial Bank, 50 AD3d 1118, 1120 [2nd Dept. 2008], lv to appeal dismissed in part, denied in part 11 NY3d 762 [2008]; [*3]Lucido v. Mancuso, 49 AD3d 220, 245 [2nd Dept. 2008]; Bolanowski v. Trustees of Columbia University in City of New York, 21 AD3d 340 [2nd Dept. 2005]. To establish prejudice, which must be significant, there must be some indication that the opposing party has incurred some change in position or hindrance in the preparation of the case which could have been avoided had the original pleading contained the proposed amendment. Spitzer v. Schussel, 48 AD3d 233 [1st Dept. 2008].
Here, there is nothing in the record before the Court to believe that the acts complained about occurred later than October 2008. As such, pursuant to CPLR § 215 (3) the Plaintiffs' claim was time-barred one year after the videos were posted. The Plaintiff fails to demonstrate any reasonable excuse for its delay in moving to amend the Summons and Complaint. Clearly, allowing the Plaintiff to amend the Summons and Complaint several years after the claim became time-barred, would be highly prejudicial to any defendant the Plaintiff later names.
Accordingly, the branch of the Plaintiffs' motion seeking to amend the Summons and Complaint herein is DENIED.
This constitutes the decision and order of this court.
DATED:Mineola, New York
January 30, 2012
________________________________
Hon. Randy Sue Marber, J.S.C.
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