Medina v. City of New York

Appellate Division of the Supreme Court of New York

Medina v. City of New York

134 A.D.3d 433, 19 N.Y.S.3d 732

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 3, 2015

Docket16265 23259/12

StatusPublished

Cited by12 cases

This text of 134 A.D.3d 433 (Medina v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Medina v. City of New York, 134 A.D.3d 433, 19 N.Y.S.3d 732 (N.Y. Ct. App. 2015).

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Opinion

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered March 20, 2014, which, insofar as appealed from as limited by the briefs, denied plaintiff’s cross motion for leave to amend the summons and complaint to substitute Police Officer Patrice Barolette for a “John/Jane Doe” defendant, unanimously reversed, on the law and the facts, without costs, the cross motion granted, and the complaint reinstated.

The court improvidently exercised its discretion in denying plaintiff’s cross motion to substitute an identified defendant in the summons and complaint (see CPLR 305 [c]; 1024, 3025). There was no evidence of any prejudice or surprise to the proposed defendant resulting from the substitution, and defendant City of New York stated that it had no substantive objection to plaintiff’s cross motion to the extent it sought leave to substitute Officer Barolette for a “John/Jane Doe” defendant (see A.N. Frieda Diamonds, Inc. v Kaminski, 122 AD3d 517 [1st Dept 2014]; National Refund & Util. Servs., Inc. v Plummer Realty Corp., 22 AD3d 430 [1st Dept 2005]). Since the limited proposed amendments were clearly described in the moving papers, plaintiff’s failure to submit proposed amended pleadings with his original moving papers (CPLR 3025 [b]), was a technical defect, which the court should have overlooked (see CPLR 2001), particularly after plaintiff provided those documents with his reply. Concur — Tom, J.P., Sweeny, Andrias and Gische, JJ.

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Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered March 20, 2014, which, insofar as appealed from as limited by the briefs, denied plaintiff’s cross motion for leave to amend the summons and complaint to substitute Police Officer Patrice Barolette for a “John/Jane Doe” defendant, unanimously reversed, on the law and the facts, without costs, the cross motion granted, and the complaint reinstated.

The court improvidently exercised its discretion in denying plaintiff’s cross motion to substitute an identified defendant in the summons and complaint (see CPLR 305 [c]; 1024, 3025). There was no evidence of any prejudice or surprise to the proposed defendant resulting from the substitution, and defendant City of New York stated that it had no substantive objection to plaintiff’s cross motion to the extent it sought leave to substitute Officer Barolette for a “John/Jane Doe” defendant (see A.N. Frieda Diamonds, Inc. v Kaminski, 122 AD3d 517 [1st Dept 2014]; National Refund & Util. Servs., Inc. v Plummer Realty Corp., 22 AD3d 430 [1st Dept 2005]). Since the limited proposed amendments were clearly described in the moving papers, plaintiff’s failure to submit proposed amended pleadings with his original moving papers (CPLR 3025 [b]), was a technical defect, which the court should have overlooked (see CPLR 2001), particularly after plaintiff provided those documents with his reply. Concur — Tom, J.P., Sweeny, Andrias and Gische, JJ.

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Bluebook (online)

134 A.D.3d 433, 19 N.Y.S.3d 732, Counsel Stack Legal Research, https://law.counselstack.com/opinion/medina-v-city-of-new-york-nyappdiv-2015.

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