APPEAL by the defendant "Jane Doe," in an action, inter alia, to recover damages for discrimination, from an order of the Supreme Court (Robert J. Miller, J.), dated February 13, 2008, and entered in Kings County, which denied her motion pursuant to CPLR 306-b, Public Authorities Law § 1266(8), and CPLR 3211(a)(2) to dismiss the complaint insofar as asserted against her.
The opinion of the court was delivered by: Dillon, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
ROBERT A. SPOLZINO, J.P., MARK C. DILLON, ANITA R. FLORIO and ARIEL E. BELEN, JJ.
A plaintiff's attorney commencing an action against an unknown "Jane Doe" defendant is sometimes between a statutory rock and a hard place in effecting service of process upon the unidentified defendant within the 120-day deadline of CPLR 306-b. This case presents us with one such scenario, where a "Jane Doe" defendant was served with process almost eight months after the filing of the plaintiff's summons and complaint, but "immediately" after the defendant's true identify became known.
The plaintiff commenced this action against the defendants New York City Transit Authority (hereinafter the NYCTA) and its employee, "Jane Doe," as a result of incidents that occurred at the Nostrand Avenue subway station in Brooklyn on July 19, 2006, and July 25, 2006. The plaintiff, a transgender female, alleges that an NYCTA employee, "Jane Doe," uttered a series of discriminatory epithets that caused her to feel harassed and threatened by the employee and others. A summons and complaint against the NYCTA and "Jane Doe" were filed on January 30, 2007. Causes of action were asserted against the NYCTA for negligent training, supervision, and retention of its employees, and against employee "Jane Doe" for wrongful discrimination pursuant to New York City Human Rights Law § 8-107(4)(a) (Administrative Code of City of NY § 8-107). Pursuant to CPLR 306-b, service of process was to be effected upon the defendants within 120 days of filing which, in this instance, expired on May 30, 2007.
Service was, in fact, effected upon the NYCTA on January 30, 2007, and is not at issue here. As a result of the plaintiff's complaint, the NYCTA determined that the "Jane Doe" employee was Lorna Smith, against whom a disciplinary hearing was initially scheduled for March 5, 2007, pursuant to the collective bargaining agreement between the NYCTA and the union representing station agents. The disciplinary proceeding was dismissed on May 1, 2007, as a result of the plaintiff's repeated failures to appear as a witness on March 5, 2007, April 5, 2007, and April 26, 2007, despite having been subpoenaed to do so.
By this time, Smith was no longer working at the Nostrand Avenue station. The plaintiff's counsel claims that he first learned of "Jane Doe's" true name as a result of the disciplinary proceeding, of which he had notice. The plaintiff's counsel served a discovery notice on August 24, 2007, requesting, among other information, Smith's home address. On a date in September 2007, the NYCTA served a discovery response that refused to disclose Smith's home address. The plaintiff's counsel claimed that Lorna Smith's name was so common that service of process upon her was impossible absent additional information. In September 2007, the plaintiff's counsel requested, and the NYCTA agreed to provide, a copy of Smith's work location and schedule. Service was then effected upon Smith "immediately" on September 20, 2007, 233 days after the filing of the plaintiff's summons and complaint.
On this record, the caption has not been amended to reflect "Jane Doe's" true identity, but is deemed amended pursuant to CPLR 1024. On November 19, 2007, Smith moved, inter alia, pursuant to CPLR 306-b to dismiss the complaint on the grounds that it was untimely served upon her. She also moved pursuant to CPLR 3211(a)(2) and Public Authorities Law § 1266(8) to dismiss the complaint for lack of subject matter jurisdiction. The plaintiff never cross-moved for an extension of time to serve process pursuant to CPLR 306-b.
In the order appealed from, the Supreme Court held that the plaintiff was entitled to an extension of the 120-day service period. The court specifically found that the plaintiff was unaware of Smith's identity upon the filing of the summons and complaint, and that she had demonstrated due diligence in attempting service despite difficulty in finding contact information, locating the transit worker, and the common nature of Smith's ...