OPINION OF THE COURT
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
I. Relevant Facts
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 (Administrative Code of City of NY) § 8-107 (4) (a). 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 plaintiffs 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 plaintiffs 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 plaintiffs 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 plaintiffs 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
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 last name. The court also denied Smith’s motion to dismiss the complaint for lack of subject matter jurisdiction.
For reasons set forth below, we affirm, though on the basis of a somewhat different analysis.
II. The Interplay of CPLR 1024 and 306-b
The New York State Legislature has recognized that there are circumstances where a party is ignorant, in whole or in part, of the identity of a person who should be made a party to an action. CPLR 1024 allows for the commencement of an action against an unknown party “by designating so much of his name and identity as is known” (see generally Orchard Park Cent. School Dist. v Orchard Park Teachers Assn.,
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, de
Prior to 1992, when actions in the Supreme and County Courts were commenced by the service of process rather than by filing, a party suing a “Jane Doe” defendant was under no particular time deadline for ascertaining the unknown party’s identity, other than commencing an action against all defendants prior to the expiration of the relevant statute of limitations (see Luckern v Lyonsdale Energy Ltd. Partnership,
The enactment of CPLR 306-b placed plaintiffs wishing to commence actions against “Jane Doe” defendants in an unenviable position that did not previously exist. By virtue of CPLR 306-b, plaintiffs were required to ascertain the identity of unknown “Jane Doe” parties, and to serve process upon them, within 120 days from filing. As a practical matter, it is not always easy or even possible for plaintiffs naming “Jane Doe” defendants to meet the service expectations of CPLR 306-b. In any given case involving two or more defendants including an unknown party, a plaintiff may serve process upon the known defendants early in the 120-day service period, and then wait 20 or 30 days for appearances and answers (see CPLR 320 [a]), absent consent extensions or pre-answer motions to dismiss the complaint (see CPLR 3211). Upon the joinder of issue, the plaintiff may then serve discovery demands upon the known parties or upon nonparties for information that may identify the unknown party, and wait for responses which may or may not be fruitful, complied with, or timely. The mechanics of serving process upon known parties, joining issue, demanding discovery, and receiving meaningful responses will, as a practical matter, exhaust, in many cases, all or most of the 120-day period of CPLR 306-b for effecting service upon the newly-identified party. If a “Jane Doe” is the only named defendant in an action, the timely identification of the party’s true identity for service of process is even more challenging.
The harshness of CPLR 306-b under these circumstances is ameliorated, in appropriate instances, by the “good cause” and “interest of justice” exceptions to CPLR 306-b. These exceptions have particular utility in actions where, as here, a plaintiff is delayed in effecting service of process by virtue of not knowing the identity of a target defendant.
The 120-day service provision of CPLR 306-b can be extended by a court, upon motion, “upon good cause shown or in the interest of justice” (CPLR 306-b). “Good cause” and “interest of justice” are two separate and independent statutory standards (see Leader v Maroney, Ponzini & Spencer,
If good cause for an extension is not established, courts must consider the “interest of justice” standard of CPLR 306-b (see e.g. Busler v Corbett,
The practicing bar need not rely exclusively on the ameliorative provisions of CPLR 306-b for coping with the difficulties posed by pursuing actions against unknown parties. There are, in fact, at least four procedural mechanisms that may be utilized which, if applicable and successful, would render unnecessary a party’s reliance upon “good cause” or the “interest of justice”
One such method is pre-action disclosure as permitted by CPLR 3102 (c). The statute permits a prospective plaintiff to seek, by court order, disclosure that will aid in bringing the action (see CPLR 3102 [c]). It has been recommended that a request for pre-action disclosure be sought by means of a special proceeding pursuant to CPLR article 4 (see Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3102:6, citing Robinson v Government of Malaysia,
A second mechanism, available when a governmental entity may know the identity of the unknown party, is the Freedom of Information Law (Public Officers Law art 8 [hereinafter FOIL]). In a case such as this involving a public employee, Public Officers Law § 89 would require the disclosure of the employee’s name (see Matter of Faulkner v Del Giacco,
Third, if pre-action discovery or FOIL requests are not viable options, plaintiffs intending to pursue a “Jane Doe” defendant may commence their actions against any known codefendants, who may possess information identifying the unknown party, well in advance of the statute of limitations (accord Misa v Hossain,
Fourth, when an originally-named defendant and an unknown “Jane Doe” party are united in interest, i.e. employer and employee, the later-identified party may, in some instances, be added to the suit after the statute of limitations has expired
Furthermore, if the plaintiff is truly at the mercy of a service extension under CPLR 306-b, which is discretionary on the part of the court (compare Crystal v Lisnow,
Under the peculiar circumstances of this case, we find that the plaintiff failed to establish an entitlement to an extension of the 120-day service deadline under a “good cause” analysis, but was entitled to an extension under the “interest of justice” standard. The good cause standard was not met here, as the plaintiff’s counsel never described what serious efforts were made, if any, to timely locate Smith for service upon learning her name, including the search of potential relevant databases or the conduct of other investigation. A discovery demand for Smith’s home address was not served by the plaintiffs counsel until August 24, 2007, almost three months after the service deadline of CPLR 306-b had already expired. Instead, the plaintiff’s counsel merely declared, in wholly conclusory fashion, that despite learning of Smith’s name and its commonality, service of process would be “virtually impossible.”
Most tellingly, the plaintiff did not attempt to serve process upon Smith at Smith’s NYCTA disciplinary proceeding in March and April 2007, after the instant action had already been commenced. The plaintiff, though subpoenaed, failed to appear at the disciplinary proceeding on three scheduled occasions. The disciplinary proceeding provided the plaintiff’s counsel with a permissible opportunity to serve Smith with process (see generally Baumgartner v Baumgartner,
The broader interest of justice factors permit a finding that the plaintiff was entitled to an extension of time to serve pro
IV Public Authorities Law § 1266 (8)
The Supreme Court properly denied that branch of Smith’s motion which was pursuant to CPLR 3211 (a) (2) to dismiss the complaint insofar as asserted against her on the ground that the Supreme Court lacked subject matter jurisdiction. Specifically, Smith contended that she was jurisdictionally exempted from compliance with Administrative Code § 8-107 (4) (a), on which the plaintiffs cause of action against her is asserted, by application of Public Authorities Law § 1266 (8).
Contrary to Smith’s contention, Public Authorities Law § 1266 (8) does not exempt the NYCTA or its employees from all local laws affecting its activities and operations, but rather, only those “conflicting with this title or any rule or regulation” of the NYCTA (see Tang v New York City Tr. Auth.,
Accordingly, the order is affirmed.
Spolzino, J.P., Florio and Belen, JJ., concur.
Ordered that the order is affirmed, with costs.
Notes
. Summonses and complaints naming “Jane Doe” defendants united in interest with other parties could also be delivered to the county clerk of a county within the City of New York or the county sheriff of a county outside the city and then served upon the “Jane Doe” defendants, when their identities were ascertained within 60 days as authorized by CPLR 203 (b) (5) (see Herbert v Gabel Equip. Corp.,
. The plaintiffs objection to the subpoena, .that she not be compelled to testify at the disciplinary hearing while her civil action was pending, does not require a different result. The proceeding provided the plaintiff with an occasion to effect service of process upon Smith whether or not the plaintiff would testify at the hearing.
. The statute of limitations for the cause of action asserted against Smith under New York City Human Rights Law § 8-107 (4) (a) is three years (see Alimo v Off-Track Betting Corp.,