Katzman v John Does No.s 1-10

[*1] Katzman v John Does No.s 1-10 2015 NY Slip Op 50045(U) Decided on January 23, 2015 Supreme Court, Queens County Elliot, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 23, 2015
Supreme Court, Queens County

Eyal Katzman, Plaintiff(s),

against

John Does No.s 1-10, etc., et al., Defendant(s).



702315 2013



Attorneys for the parties:

Counsel for Plaintiff: Erlanger Law Firm PLLC, By: Robert Erlanger, Esq., 122 East 42nd Street, Suite 518, New York, NY 10168, 212-686-8045

Counsel for Respondent: Cole Hansen Chester LLP, By: Michael S. Cole, Esq., 767 Third Avenue, 24th Floor, New York, NY 10017, 212 -599-1535
David Elliot, J.

The following papers read on this motion by defendants Douglas Elliman, LLC, and Douglas Elliman Realty, LLC (collectively the Elliman defendants), pursuant to CPLR 3212, for summary judgment dismissing the (amended) complaint.

Papers

Numbered

Notice of Motion - Affirmation - Exhibits......................................EF21-36

Answering Affirmation - Exhibits...................................................EF46-51

Reply................................................................................................EF53-54

Upon the foregoing papers it is ordered that the motion is determined as follows:

This is an action for defamation. Plaintiff alleges that the defendant Yvette Nario made defamatory postings on the Craigslist website on January 9 and January 10, 2012. Defendant Nario, at the time, was a broker at the office of the Elliman defendants. The postings were alleged to have been made both from Nario's home computer and at a computer at the office of the Elliman defendants. The original complaint in this action was filed on January 4, 2013, and named "JOHN DOES NO.s 1-10 (said names being unknown and fictitious) and ABC CORP.s NO.s 1-10 (said names being unknown and fictitious)," as defendants. Plaintiff then filed a supplemental summons and amended complaint on April 11, 2013, which named Nario and the Elliman defendants as additional parties. The latter pleadings were personally served on the Elliman defendants on April 22, 2013.

The Elliman defendants have moved for summary judgment dismissing the (amended) complaint on the ground that the action is barred by the statute of limitations. A cause of action for defamation has a one-year statute of limitations (CPLR 215 [3]). In defamation cases involving internet publication, the one-year statute of limitations begins to run from the date it was first posted (see Firth v State of New York, 98 NY2d 365 [2002]). Here, the statute of limitations began to run on January 9, 2012 and January 10, 2012 and, therefore, expired on January 9, 2013 and January 10, 2013. Plaintiff did not file a complaint specifically naming the Elliman defendants until April 11, 2013. The Elliman defendants argue that, inasmuch, as plaintiff did not timely file a complaint naming them as defendants, same requires dismissal.

Plaintiff, however, argues that he filed the original complaint on January 4, 2013, and therefore, the action is not barred by the statute of limitations. Plaintiff further avers that, in addition to having timely filed the complaint, CPLR 306-b gives him 120 days to effectuate service on the proper defendants, which was done in this case. Finally, plaintiff states that, even though the amended complaint was filed beyond the limitations period, the amended complaint was substantially similar to the one originally filed (see Schroeder v Good Samaritan Hosp., 80 AD3d 744 [2d Dept 2011]).

Plaintiff's contentions are without merit. In order for plaintiff to be permitted to utilize CPLR 1024 and to rely on a complaint against an unknown party in the first instance, he must establish that he made a timely diligent effort to identify the correct party before the statute of limitations expired and before commencement of the action (CPLR 1024; Comice v Justin's Restaurant, 78 AD3d 641 [2d Dept 2010]; Bumpus v New York City Tr. Auth., 66 AD3d 26 [2d Dept 2009]; Misa v Hossain, 42 AD3d 484 [2d Dept 2007]; Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C1024]). Failure to establish such efforts prior thereto results in dismissal of the complaint, irrespective of the 120-day time period within which the plaintiff has to serve those defendants after filing the complaint (see Bumpus, 66 AD3d at 29-30 ["The use of CPLR 1024 presents many pitfalls. One pitfall is that 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"(internal citations omitted)]; Goldberg v Boatmax://, Inc., 41 AD3d 255 [*2][2d Dept 2007] ["Plaintiff did not prior to the running of the statutory period serve three of the four individuals he contends were properly designated as John Doe,' with copies of the summons and complaint, so jurisdiction was never obtained over those individuals. CPLR 1024 does not avail plaintiff as he now seeks to amend the caption to name the intended defendants, since he has not demonstrated that he conducted a diligent inquiry into the actual identities of the intended defendants before the expiration of the statutory period"]; Justin v Orshan, 14 AD3d 492 [2 Dept 2005]; Scoma v Doe, 2 AD3d 432 [2d Dept 2003]).

Here, plaintiff, who is an attorney, failed to establish that he made a diligent effort in a timely manner to identify the Elliman defendants. Plaintiff wrote an email to Craigslist complaining of the defamatory posting on January 9, 2012, the same date of the first posting, and requested information on the publisher. Plaintiff received an email in response from Craigslist on January 10, 2012, the date of the second posting, stating that Craigslist would not release posting details without a court order, subpoena, search warrant, or other similar legal request. Plaintiff then waited until August 13, 2012, over seven months, before making his application for pre-action discovery to obtain the information from Craigslist (see generally Bumpus, 66 AD3d at 33). In response to the order to show cause, Craigslist, on October 5, 2012, provided plaintiff with the email and Internet Protocol (IP) addresses of the posters. Plaintiff then waited until January 3, 2013, almost 3 more months, to subpoena Verizon for information on the owner of the IP addresses. Plaintiff, thus, did not seek the identity of the defendants in a timely and diligent manner and, resultantly, his action must be dismissed (see Temple v Community Hosp., 89 AD3d 926 [2d Dept 2011]; Misa, 42 AD3d at 486).

It should also be noted that plaintiff filed and served a supplemental summons and amended complaint — which added the Elliman defendants by name to those John Doe and ABC Corp. defendants already named in the caption — after the expiration of the statute of limitations, and the Elliman defendants cannot be said to relate back to a "John Doe" or "ABC Corp." (see e.g. Hirsh v Perlmutter, 53 AD3d 597 [2008]; Hilliard v Roc-Newark Assoc., 287 AD2d 691 [2001]).

Plaintiff's sole reliance on Schroeder (80 AD3d at 746) and Selmani v City of New York (100 AD3d 861 [2012]) in support of his contention that the action is not time-barred, are inopposite, as these cases did not involve the use of "John Doe summonses" pursuant to CPLR 1024. Plaintiff's use of CPLR 1024 is the key difference between the instant matter and the cases cited by him, that difference remaining unaddressed by plaintiff in opposition.

Accordingly, the motion by defendants Douglas Elliman, LLC, and Douglas Elliman Realty, LLC, is granted and the complaint is dismissed as against those defendants.

Dated: January 23, 2015

J.S.C.

cplr 1024