theCPLRblog

Judicial economy

CPLR § 602 Consolidation

43rd St. Deli v Paramount Leasehold, L.P., 2011 NY Slip Op 08296 (1st Dept., 2011)

Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered April 5, 2011, which, insofar as appealed from, in this action seeking, inter alia, a declaration that plaintiff tenant is not in default of the parties' lease and that plaintiff properly exercised its option to renew the lease, denied plaintiff's motion to remove a pending holdover proceeding in the Housing Part of Civil Court and to consolidate it with this action, unanimously reversed, on the law, without costs, and the motion granted.

The motion should have been granted in the interests of judicial economy (see e.g. Amcan Holdings, Inc. v Torys LLP, 32 AD3d 337, 339 [2006]; Moretti v 860 W. Tower, Inc., 221 AD2d 191 [1995]). The record shows that the Supreme Court action and the Civil Court proceeding involve the same parties, and essentially the same questions of law and fact. Defendant has failed to demonstrate that any of its substantial rights would be prejudiced (see Fisher 40th & 3rd Co. v Welsbach Elec. Corp., 266 AD2d 169, 170 [1999]; Amtorg Trading Corp. v Broadway & 56th St. Assoc., 191 AD2d 212, 213 [1993]), and the Civil Court cannot accord the complete relief sought by plaintiff in the Supreme Court action (see DeCastro v Bhokari, 201 AD2d 382, 382-83 [1994]).

Consolidaton and sanctions: CPLR § 602

CPLR § 602

Galasso, Langione & Botter, LLP v Galasso, 2011 NY Slip Op 01430 (App. Div., 2nd 2011)

"A motion for consolidation is addressed to the sound discretion of the court, and absent a showing of substantial prejudice by the party opposing the motion, consolidation is proper where there are common questions of law and fact" (RCN Constr. Corp. v Fleet Bank, N.A., 34 AD3d 776, 777). Here, the Supreme Court providently exercised its discretion in denying the motion to consolidate, as there were no common questions of law and fact. The Supreme Court also providently exercised its discretion in granting the cross motion of the plaintiffs in Action Nos. 1 and 2 to impose sanctions against the appellant (see 22 NYCRR 130-1.1[c]; Tornheim v Blue & White Food Prods. Corp., 73 AD3d 749).

Venue and Consolidation

Grinman v Alamo Rent A Car, Inc., 2010 NY Slip Op 03067 (App. Div., 2nd, 2010)

The Supreme Court did not improvidently exercise its discretion in granting the motion of the defendants Highland Trans Fleet and Manuel Rebelo and that branch of the cross motion of the defendants Alamo Rent A Car, Inc., National Car Rental, Inc., and Inna Grinman which were to change the venue of the action from Kings County to Steuben County where the underlying motor vehicle accident occurred. The affirmations of the defendants' attorneys and supporting evidence sufficiently detailed (1) the names, addresses, and occupations of numerous prospective witnesses, at least one of whom was a State Trooper based in Bath, (2) the facts to which the witnesses will testify at trial, (3) a statement that the witnesses are willing to testify, and (4) a statement that the witnesses would be greatly inconvenienced if the venue of the action was not changed (see Walsh v Mystic Tank Lines Corp., 51 AD3d 908, 909; Lafferty v Eklecco, LLC, 34 AD3d 754, 755; Professional Veh. Leasing v Continuing Dev. Servs., 275 AD2d 313, 314).

KMK Safety Consulting, LLC v Jeffrey M. Brown Assoc., Inc., 2010 NY Slip Op 02927 (App. Div., 2nd, 2010)

In the present action, arising out of a contractual dispute and commenced in the Supreme Court, Richmond County, the defendants produced a copy of the subject contract in support of their motion. That contract recited, inter alia, that the defendant Jeffrey M. Brown Associates, Inc., was a Pennsylvania corporation, and it further provided, in relevant part, that "[a]ny dispute between the parties related to this Contract shall be determined by the Pennsylvania Court of Common Pleas, Philadelphia County." Contrary to the plaintiff's contention, the Supreme Court properly granted the defendants' motion to dismiss the complaint on the basis of documentary evidence containing this unambiguous forum selection clause.

"A contractual forum selection clause is prima facie valid and enforceable unless it is shown by the challenging party to be unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived of its day in court" (LSPA Enter., Inc. v Jani-King of N.Y., Inc., 31 AD3d 394, 395; see Boss v American [*2]Express Fin. Advisors Inc., 6 NY3d 242, 246; Brooke Group v JCH Syndicate 488, 87 NY2d 530, 534; Trump v Deutsche Bank Trust Co. Ams., 65 AD3d 1329, 1331; W.J. Deutsch & Sons, Ltd. v Charbaut Am., Inc., 57 AD3d 529; Koob v IDS Fin. Servs., 213 AD2d 26, 33). The plaintiff's vague and conclusory assertions that the forum selection clause is unconscionable and unreasonable are inadequate to defeat the defendants' motion (see Tatko Stone Prods., Inc. v Davis-Giovinzazzo Constr. Co., Inc., 65 AD3d 778, 779; Horton v Concerns of Police Survivors, Inc., 62 AD3d 836, 836-837; Casper v Pines Assocs., L.P., 53 AD3d 764, 765; Stravalle v Land Cargo, Inc., 39 AD3d 735, 736; LSPA En-ter., Inc. v Jani-King of N.Y., Inc., 31 AD3d 394, 395). Similarly, the plaintiff's contentions that its president did not read the contract and was unaware of its terms prior to signing it are patently unavailing (see Gillman v Chase Manhattan Bank, 73 NY2d 1, 11; British W. Indies Guar. Trust Co. v Banque Internationale A Luxembourg, 172 AD2d 234).

Richmond Amboy Realty, LLC v 3881 Richmond Ave. Realty, Inc., 2010 NY Slip Op 03098 (App. Div., 2nd, 2010)

In the interests of judicial economy, the Supreme Court providently exercised its discretion in granting those branches of the plaintiff's motion which were to remove a summary nonpayment proceeding, pending in the Civil Court, to the Supreme Court, and to consolidate that proceeding with the instant action seeking, inter alia, a declaration regarding the plaintiff tenant's right to be restored to possession of the premises (see CPLR 602[b]; Pinecrest Natl. Funding, LLC., v Aatlas-B Props., Inc., 68 AD3d 833; Kally v Mount Sinai Hosp., 44 AD3d 1010).

Jackam v Nature's Bounty, Inc., 70 AD3d 1000 (App. Div., 2nd, 2010)

The plaintiffs commenced this action against the defendants in November 2004. After some discovery was completed, the defendants moved in March 2006 to dismiss the complaint on the ground of forum non conveniens. The Supreme Court denied the motion without prejudice to renewal after discovery was completed. Accordingly, after discovery was completed, the defendants renewed their motion to dismiss the complaint in September 2008 on the ground of forum non conveniens. The court again denied the motion. We reverse. "The common-law doctrine of forum non conveniens, also articulated in CPLR 327 (a), permits a court to stay or dismiss [an action] where it is determined that the action, although jurisdictionally sound, would be better adjudicated elsewhere. In a motion to dismiss on the ground of forum non conveniens, the burden is on a defendant challenging the forum to demonstrate relevant private or public interest factors which militate against accepting the litigation here. The court's determination will not be disturbed on appeal unless the court has failed to properly consider all the relevant factors" (Prestige Brands, Inc. v Hogan & Hartson, LLP, 65 AD3d 1028, 1028-1029 [2009] [internal quotation marks and citations omitted]; see Islamic Republic of Iran v Pahlavi, 62 NY2d 474 [1984], cert denied 469 US 1108 [1985]; Harleysville Ins. Co. v Ermar Painting & Contr., Inc., 8 AD3d 229 [2004]; Korea Exch. Bank v A.A. Trading Co., 8 AD3d 344 [2004]). Among the factors the court must weigh are "the residency of the parties, the potential hardship to proposed witnesses including, especially, nonparty witnesses, the availability of an alternative forum, the situs of the underlying actionable events, the location of evidence, and the burden that retention of the case will impose upon the New York courts" (Turay v Beam Bros. Trucking, Inc., 61 AD3d 964, 966 [2009]). "The court has discretion whether [or not] to retain jurisdiction" (Rosenberg v Stikeman Elliott, LLP, 44 AD3d 840, 841 [2007]). The court's determination will not be disturbed on appeal "absent an improvident exercise of . . . discretion or a failure to consider the relevant factors" (Brinson v Chrysler Fin., 43 AD3d 846, 848 [2007]; see Islamic Republic of Iran v Pahlavi, 62 NY2d 474 [1984]; Cheggour v R'Kiki, 293 AD2d 507, 508 [2002]).

Here, even though the defendants are New York residents, their renewed motion to dismiss the complaint on the ground of forum non conveniens should have been granted. The record establishes that the injured plaintiff ingested Xtreme Lean in Georgia, and that his alleged injury and all of his subsequent medical treatment for that alleged injury occurred in Georgia. Furthermore, all of the injured plaintiff's treating physicians and his medical records are located in Georgia. There are also additional fact witnesses that reside in Georgia. While the defendants have not produced affidavits from those witnesses showing that it would be a hardship for them to travel to New York to testify, it appears that the plaintiffs have frustrated the defendants' efforts to obtain discovery and depositions from those witnesses in Georgia. This has made it difficult, if not impossible, for the defendants to produce these affidavits. Under these circumstances, since it appears that all or most of the evidence that will be required from the defendants would be in the form of documents, and since the defendants have agreed to be subject to subpoena in Georgia, which appears to be available as an alternate forum, the Supreme Court improvidently exercised its discretion in denying the defendants' renewed motion to dismiss the complaint on the ground of forum non conveniens (see Prestige Brands, Inc. v Hogan & Hartson, LLP, 65 AD3d 1028 [2009]; Brinson v Chrysler Fin., 43 AD3d 846 [2007]; Cheggour v R'Kiki, 293 AD2d at 508; Evdokias v Oppenheimer, 123 AD2d 598 [1986]; see also Matter of Henry v Skratt, 11 AD3d 691 [2004]; cf. Harleysville Ins. Co. v Ermar Painting & Contr., Inc., 8 AD3d 229 [2004]).

In order to assure the availability of a forum for the action, our reversal and granting of the defendants' motion to dismiss the complaint pursuant to CPLR 327 is conditioned on the defendants stipulating to waive jurisdictional and statute of limitations defenses (see CPLR 327 [a]; Turay v Beam Bros. Trucking, Inc., 61 AD3d 964 [2009]).

The bold is mine.

On consolidation: CPLR § 602

CPLR § 602 Consolidation
(a) Generally

Whiteman v Parsons Transp. Group of N.Y., Inc., 2010 NY Slip Op 02944 (App. Div., 2nd, 2010)

Where common questions of law or fact exist, a motion pursuant to CPLR 602(a) to consolidate or for a joint trial should be granted absent a showing of prejudice to a substantial right of the party opposing the motion (see Mas-Edwards v Ultimate Servs., Inc., 45 AD3d 540; Perini Corp. v WDF, Inc., 33 AD3d 605, 606; Nationwide Assoc. v Targee St. Internal Med. Group, P.C. Profit Sharing Trust, 286 AD2d 717). Here, the action commenced in the Supreme Court, Kings County, shares defendants and questions of law and fact in common with two related actions pending in the Supreme Court, New York County (see Nigro v Pickett, 39 AD3d 720, 722; Spector v Zuckermann, 287 AD2d 704). Furthermore, the plaintiff failed to show prejudice to a substantial right if this action is transferred to New York County, and mere delay of the trial is not a sufficient basis upon which to deny a motion for consolidation or a joint trial (see Alsol Enters., Ltd. v Premier Lincoln-Mercury, Inc., 11 AD3d 494; Zupich v Flushing Hosp. & Med. Ctr., 156 AD2d 677). Moreover, in the absence of special circumstances, where the actions have been commenced in different counties, the place of trial should be in the county where venue of the first-commenced action currently lies (see Almoghazy v Gonzalez, 233 AD2d 349, 350; Levertov v Congregation Yetev Lev [*2]D'Satmar, 129 AD2d 680; T T Enters. v Gralnick, 127 AD2d 651, 652). Since venue properly lies in New York County with respect to the first of the three subject actions to be commenced, venue of the action commenced in the Supreme Court, Kings County, was properly transferred to New York County.

However, the respondent's motion to consolidate the three actions should have been granted only to the extent of directing a joint trial, particularly since the actions involve different plaintiffs (see Perini Corp. v WDF, Inc., 33 AD3d at 606-607; Cola-Rugg Enters., v Consolidated Edison Co. of N.Y., 109 AD2d 726; Mascioni v Consolidated R.R. Corp., 94 AD2d 738).

The bold is mine.

CPLR § 602 Consolidation
(a) Generally

Interesting to Me (CPLR 3215; 4518; 3121; 602; 3018)

Of all the decisions that came out this past week, these are the ones that I read and though, "hey, that's interesting."

New S. Ins. Co. v Dobbins, 2010 NY Slip Op 01773 (App. Div., 2nd, 2010)

The Supreme Court properly, upon renewal and reargument, adhered to so much of its original determination as denied the plaintiff leave to enter judgment against the defendants James Dobbins, Jr., and Felita Dobbins, upon their default in answering the complaint. In support of its motion, the plaintiff offered the complaint, which was verified by plaintiff's counsel, and an affidavit of the plaintiff's investigator, neither of whom possessed personal knowledge of the facts constituting the claim (see CPLR 3215; Woodson v Mendon Leasing Corp., 100 NY2d 62, 70-71; Hosten v Oladapo, 44 AD3d 1006; Finnegan v Sheahan, 269 AD2d 491). The statements from the driver of the other vehicle that the plaintiff's investigator relied upon in his affidavit constituted inadmissible hearsay (see CPLR 4518[a]; Hochhauser v Electric Ins. Co., 46 AD3d 174, 179-183; Metropolitan Cas. Ins. Co. v Shaid, 23 Misc 3d 1140[A]). Accordingly, entry of a default judgment against these defendants was properly denied on the papers before the Supreme Court.

Ok, this one is a little older.  I accidentally put it with the others.  But since it's already here, I might as well keep it.

Tucker v Bay Shore Stor. Warehouse, Inc., 2010 NY Slip Op 00134 (App. Div., 2nd, 2010)

Contrary to the defendants' contentions, the Supreme Court did not improvidently exercise its discretion in denying that branch of their motion which was to compel the plaintiff to undergo a second independent medical examination. "The supervision of disclosure and the setting of reasonable terms and conditions therefor rests within the sound discretion of the trial court and, absent an improvident exercise of that discretion, its determination will not be disturbed" (Mattocks v White Motor Corp., 258 AD2d 628, 629 [internal quotation marks and citations omitted]; see Kaplan v Herbstein, 175 AD2d 200). While CPLR 3121 does not limit the number of examinations to which a party may be subjected, a party seeking a further examination must demonstrate the necessity for it (see Young v Kalow, 214 AD2d 559; see also Huggins v New York City Tr. Auth., 225 AD2d 732). Here, the defendants failed to show that a further physical examination of the plaintiff was required. While we strongly disapprove of the plaintiff's counsel instructing the plaintiff to refuse to respond to questions relating to her relevant past medical history, there was no indication by the defendants' examining physician that his prior examination was hindered, or that he required additional information.

Gladstein v Martorella, 2010 NY Slip Op 01732 (App. Div., 1st, 2010)

When parties set down their agreement in a clear, complete document, their writing should, as a rule, be enforced according to its terms. Evidence outside the four corners of the document as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing. Extrinsic and parol evidence are not admissible to create an ambiguity in a written agreement which is complete, clear and unambiguous on its face (see W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]).

The agreement herein is unambiguous on its face. Both sale and lease contracts may be utilized in meeting the 75% requirement. "The best evidence of what parties to a written agreement intend is what they say in their writing" (Greenfield v Philles Records, 98 NY2d 562, 569 [2002] [internal quotation marks and citation omitted]). If the parties intended to exclude lease contracts from consideration, they made a mistake in the agreement. "An omission or mistake in a contract does not constitute an ambiguity" (Reiss v Financial Performance Corp., 97 NY2d 195, 199 [2001] [internal quotation marks and citation omitted]).

Progressive Northeastern Ins. Co. v North State Autobahn, Inc., 2010 NY Slip Op 01779 (App. Div., 2nd, 2010)

The Supreme Court did not improvidently exercise its discretion in denying that branch of the defendants' motion which was, in the alternative, to direct that this action be tried jointly with an action entitled North State Autobahn v Progressive Insurance Group, pending in the Supreme Court, Westchester County, under Index No. 02761/07. Inasmuch as the two actions did not involve common questions of law or fact (see CPLR 602[a]), a joint trial was not warranted (see Beerman v Morhaim, 17 AD3d 302, 303).

At the close of the plaintiff's case, which arises out of the defendants' repair of a motor vehicle owned by the plaintiff's insured, the defendants moved for judgment as a matter of law on the ground that the plaintiff had failed to establish a prima facie case (see CPLR 4401). The Supreme Court granted the motion on a ground not argued by the defendants, namely, that the plaintiff's payment of the full amount of the final bill for the repair of the vehicle without asserting that the payment was, in some [*2]manner, "under protest," barred the plaintiff's claims under the doctrine of accord and satisfaction (see Merrill Lynch Realty/Carll Burr, Inc. v Skinner, 63 NY2d 590, 596; Uniform Commercial Code § 1-207). In granting the motion on that ground, the Supreme Court erred in two respects. First, accord and satisfaction is an affirmative defense which must be pleaded and proved (see CPLR 3018[b]; Conboy, McKay, Bachman & Kendall v Armstrong, 110 AD2d 1042; see also Arias-Paulino v Academy Bus Tours, Inc., 48 AD3d 350; Dec v Auburn Enlarged School Dist., 249 AD2d 907, 908). The defendants did not plead accord and satisfaction as an affirmative defense, and it was improper for the Supreme Court to raise it sua sponte (see Trustco Bank N.Y. v Cohn, 215 AD2d 840, 841; cf. Rienzi v Rienzi, 23 AD3d 450). Second, the doctrine of accord and satisfaction is not applicable because it contemplates full knowledge of the facts on the part of both parties who, in effect, enter into a new contract to expeditiously settle a contract dispute (see Horn Waterproofing Corp v Bushwick Iron & Steel Co., 66 NY2d 321, 325). In this action, inter alia, to recover damages for fraud, the gravamen of the plaintiff's claim is that it was without such knowledge because of the defendants' alleged misrepresentation of material facts. Thus, a new trial is warranted.

We note that, upon retrial, the plaintiff should not be limited to damages in the sum of $2,808.65, the amount of the allegedly fraudulent charges contained in the final bill of the defendant North State Autobahn, Inc., d/b/a North State Custom Auto, but rather to the amount sought in the complaint.

Another older one.

Simmons v New York City Health & Hosps. Corp., 2010 NY Slip Op 01692 (App. Div., 1st, 2010)

The motion court, by declining to grant defendant's motion to dismiss the complaint and ordering discovery, limited to plaintiff's assertion of the insanity toll, necessarily rejected defendant's res judicata defense. Thus, the order at issue, at least to the extent that it denied defendant's motion to dismiss on grounds of res judicata is appealable insofar as it affects a substantial right (see Fellner v Morimoto, 52 AD3d 352, 353 [2008]; CPLR 5701[a][2][v]).

However, contrary to the lower court's implicit conclusion the instant action is in fact barred by res judicata. Plaintiff's prior action was against a doctor employed by defendant, arose from the same course of treatment alleged in the instant action, and was dismissed on statute of limitations grounds. While defendant was not a party to the prior action, as defendant doctor's employer, required to indemnify defendant doctor in the prior action, it was in privy with defendant doctor (Beuchel v Bain, 97 NY2d 295, 304-305 [2001], cert denied 535 US 1096 [2002]; Prospect Owners Corp. v Tudor Realty Servs., 260 AD3d 299 [1999]), the real party in interest in that action (Ebert v New York City Health and Hosp. Corp., 82 NY2d 863, 866-867 [1993]), and the abbreviated statute of limitations applicable to defendant was thus applied to him (see International Shared Servs. v County of Nassau, 222 AD2d 407, 408 [1995]; Urraro v Green, 106 AD2d 567 [1984]). Plaintiff cannot avoid res judicata by varying facts, changing his causes of action and omitting references to the previously named doctor (see Reilly v Reed, 45 NY2d 24, 28-30 [1978]; Marinelli v Assocs. v Helmsley Noyes Co., 265 AD2d 1 [2000]).

The bold, that I will eventually use, will be mine.

Bumpus (IMPORTANT): CPLR § 1024; § 306-b; § 3102; R. 3025; § 602; § 203

CPLR § 1024 Unknown parties

CPLR § 306-b. Service of the summons and complaint, summons with notice, third-party summons and complaint, or petition with a notice of petition or order to show cause 

CPLR § 3102 Method of obtaining disclosure
(c) Before action commenced

CPLR R. 3025 Amended and supplemental pleadings
(b) Amendments and supplemental pleadings by leave

CPLR § 602 Consolidation
(a) Generally

CPLR § 203 Method of computing periods of limitation generally
(f) Claim in amended pleading

I'm only posting the analysis on this one.  For the facts in their entirety, read the decision.  For a brief intro to the decision, click here.

Bumpus v New York City Tr. Auth., 2009 NY Slip Op 05737 (App. Div., 2nd, 2009)

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., 50 AD2d 462, 467). To be effective, a summons and complaint must describe the unknown party in such a manner that the "Jane Doe" would understand that she is the intended defendant by a reading of the papers (see Olmsted v Pizza Hut of Am., Inc., 28 AD3d 855, 856; Justin v Orshan, 14 AD3d 492; Lebowitz v Fieldston Travel Bur., 181 AD2d 481, 482).

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 (see Hall v Rao, 26 AD3d 694, 695; Justin v Orshan, 14 AD3d 492, 492-493; Opiela v May Indus. Corp., 10 AD3d 340, 341; Tucker v Lorieo, 291 AD2d 261; Porter v Kingsbrook OB/GYN Assoc., 209 AD2d 497). Any failure to exercise due diligence to ascertain the "Jane Doe's" name subjects the complaint to dismissal as to that party (see Hall v Rao, 26 AD3d at 695; Justin v Orshan, 14 AD3d at 492-493; Opiela v May Indus. Corp., 10 AD3d at 341). A second requirement unique to CPLR 1024 is that the "Jane Doe" party be described in such form as will fairly apprise the party that she is the intended defendant (see City of Mount Vernon v Best Dev. Co., 268 NY 327, 331; Olmsted v Pizza Hut of Am., Inc., 28 AD3d at 856; Justin v Orshan, 14 AD3d at 492-493). An insufficient description subjects the "Jane Doe" complaint to dismissal for being jurisdictionally defective (see Lebowitz v Fieldston Travel Bur., 181 AD2d 481, 482-483; Reid v Niagra Mach. & Tool Co., 170 AD2d 662). A third pitfall unique to CPLR 1024 is its interplay with CPLR 306-b.

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 [*3]v Lyondale Energy Ltd. Partnership, 229 AD2d 249, 255)^[FN1]. However, the enactment of CPLR 306-a in 1992 required that actions in Supreme and County Courts be commenced by filing rather than by service (L 1992, ch 216, § 6; see generally Matter of Fry v Village of Tarrytown, 89 NY2d 714, 718-720) and upon filing, CPLR 306-b, which was enacted at the same time as 306-a (L 1992, ch 216, § 7), superimposed the requirement that service of process be effected within 120 days (see CPLR 306-b; see generally Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 100-101). The filing of the summons with notice or summons and complaint fixed the point at which an action was commenced for statute of limitations purpose (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 100; Matter of Gershel v Porr, 89 NY2d 327, 330).

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 non-parties 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, 97 NY2d at 104). To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-06). Good cause will not exist where a plaintiff fails to make any effort at service (see Valentin v Zaltsman, 39 AD3d 852; Lipschitz v McCann, 13 AD3d 417), or fails to make at least a reasonably diligent effort at service (see e.g. Kazimierski v New York Univ., 18 AD3d 820; Baione v Central Suffolk Hosp., 14 AD3d 635, 636-637; Busler v Corbett, 259 AD2d 13, 15). By contrast, good cause may be found to exist where the plaintiff's failure to timely serve process is a result of circumstances beyond the plaintiff's control (see U.S. 1 Brookville Real Estate Corp. v Spallone, 13 Misc 3d 1236[A], quoting Eastern Refractories Co., Inc. v Forty-Eight Insulations, Inc., 187 FRD 503, 505; see also Greco v Renegades, Inc., 307 AD2d 711, 712 [difficulties of service associated with locating defendant enlisted in military]; Kulpa v Jackson, 3 Misc 3d 227, 235 [difficulties associated with service abroad through the Hague Convention]).

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, 259 AD2d at 17). The interest of justice standard does not require reasonably diligent efforts at service, but courts, in making their [*4]determinations, may consider the presence or absence of diligence, along with other factors (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105). The interest of justice standard is broader than the good cause standard (see Mead v Singleman, 24 AD3d 1142, 1144), as its factors also include the expiration of the statute of limitations, the meritorious nature of the action, the length of delay in service, the promptness of a request by the plaintiff for an extension, and prejudice to the defendant (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-106; Matter of Jordan v City of New York, 38 AD3d 336, 339; Estey-Dorsa v Chavez, 27 AD3d 277; Mead v Singleman, 24 AD3d at 1144; de Vries v Metropolitan Tr. Auth., 11 AD3d 312, 313; Hafkin v North Shore Univ. Hosp., 279 AD2d 86, 90-91, affd 97 NY2d 95; see also Slate v Schiavone Const. Co., 4 NY3d 816).

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" for additional time to serve process upon "Jane Doe" defendants who cannot be readily identified.

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 Commentary, McKinney's Cons Laws of NY, CPLR C3102:4, quoting Robinson v Government of Malaysia, 174 Misc 2d 560). While pre-action disclosure is often thought of as a device to enable the plaintiff to frame a complaint (see generally Matter of Wien & Malkin v Wichman, 255 AD2d 244; Matter of Perez v New York City Health and Hosps. Corp., 84 AD2d 789; Matter of Rosenberg v Brooklyn Union Gas Co., 80 AD2d 834; Matter of Urban v Hooker Chems. & Plastics Corp., 75 AD2d 720; Matter of Roland, 10 AD2d 263, 265) or to preserve evidence for a forthcoming lawsuit (see generally Matter of Thomas v New York City Tr. Police Dept., 91 AD2d 898; Gearing v Kelly, 15 AD2d 477; Matter of O'Grady v City of New York, 164 Misc 2d 171, 173; Matter of Spraggins v Current Cab Corp., 127 Misc 2d 774, 775), it has also been recognized as an appropriate device for ascertaining the identities of prospective defendants (see Matter of Alexander v Spanierman Gallery, LLC, 33 AD3d 411; Matter of Toal v Staten Is. Univ. Hosp., 300 AD2d 592; Matter of Stewart v New York City Tr. Auth., 112 AD2d 939, 940; Perez v New York City Health and Hosps. Corp., 84 AD2d at 789; Matter of Bergan v Sullivan Bros. Wood Prods. of Keeseville, 77 AD2d 723; Matter of Roland, 10 AD2d at 265). Plaintiffs' attorneys who are retained sufficiently in advance of the expiration of the statute of limitations may avoid the problem of identifying a "Jane Doe" defendant for service within the time limits of CPLR 306-b, where successful pre-action disclosure results in the identification of the unknown defendant prior to the filing of a summons and complaint.

A second mechanism, available when a governmental entity may know the identify 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, 139 Misc 2d 790, 794 [disclosure of names of prison guards accused of inappropriate behavior]), but exempt from disclosure the employee's home address (see Public Officers Law §§ 87[2][b]; 89[2][b]; 89[7]; Matter of Pasik v State Bd. of Law Examiners, 114 Misc 2d 397, 407-408, mod 102 AD2d 395). Nothing in the Public Officers Law appears to prohibit the disclosure of records identifying an employee's work location and schedule, which was the information that the NYCTA ultimately agreed to provide to the plaintiff's counsel in this instance to enable service of process upon Smith. FOIL requests are designed to be acted upon by public agencies expeditiously, typically within five business days from receipt of a written request for non-exempt records (see Public Officers Law § 95[1][a]). The speed of the statute can prove useful to practitioners who, facing an approaching statute of limitations, seek to identify the "Jane Doe" party prior to the commencement of the action.

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 co-defendants, who may possess information identifying the unknown party, well in advance of the statute of limitations (accord Misa v Hossain, 42 AD3d at 486). Doing so affords two distinct procedural options. If the discovery process would not lead to an identification of the unknown target in sufficient time for service of process upon that party under the limited 120-day deadline of CPLR 306-b, the subsequent disclosure of identifying information will still permit, within the wider statute of limitations, either an amended complaint by stipulation or by leave of court naming the [*5]additional party (see CPLR 3025[b]), or alternatively, the commencement of a timely separate action against the additional party with a view to its later consolidation with the original action (see CPLR 602[a]; cf. Matter of Vogel, 19 Misc 3d 853, 859). Commencing the initial action well before the expiration of the statute of limitations makes service upon the newly-identified party possible. The same result does not inure to practitioners who wait until the limitations period is close to expiring before commencing their actions against known parties.

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 pursuant to the "relation-back" doctrine of CPLR 203(f), based upon post-limitations disclosure of the unknown party's identity (see Reznick v MTA/Long Is. Bus, 7 AD3d 773, 774; Gottlieb v County of Nassau, 92 AD2d 858). The relation-back doctrine allows a party to be added to an action after the expiration of the statute of limitations, and the claim is deemed timely interposed, if (1) the claim arises out of the same conduct, transaction, or occurrence, (2) the additional party is united in interest with the original party, and (3) the additional party knew or should have known that but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against the additional party as well (see Buran v Coupal, 87 NY2d 173, 178). The moving party seeking to apply the relation-back doctrine to a later-identified "Jane Doe" defendant has the added burden of establishing that diligent efforts were made to ascertain the unknown party's identity prior to the expiration of the statute of limitations (see Hall v Rao, 26 AD3d at 695; Scoma v Doe, 2 AD3d at 433; Tucker v Lorieo, 291 AD2d at 262).

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, 56 AD3d 713, 714 with Cooper v New York City Bd. of Educ., 55 AD3d 526), any "Jane Doe" service problem should be proactively addressed by the filing of a motion for a CPLR 306-b extension. Indeed, the promptness of a request for an extension of time to serve a "Jane Doe" defendant is a specific factor that is to be considered by courts in determining "interest of justice" extensions (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-106; Matter of Anonymous v New York State Off. of Children & Family Servs., 53 AD3d 810, 810-811; Rosenzweig v 60 N. St. LLC, 35 AD3d 705; Scarabaggio v Olympia & York Estates Co., 278 AD2d 476, affd 97 NY2d 95). While CPLR 306-b is not construed to require that a motion for a service extension be filed before the expiration of the 120-day statutory period (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 106-07), prompt motions are more likely to be successful (id.; Scarabaggio v Olympia & York Estates Co., 278 AD2d at 476), as they are a sign of diligence, whereas dilatory motions are less so (see Matter of Anonymous v New York State Off. of Children & Family Services, 53 AD3d at 810-811).

The bold is mine.

CPLR § 306-b. Service of the summons and complaint, summons with notice, third-party summons and complaint, or petition with a notice of petition or order to show cause 

CPLR § 3102 Method of obtaining disclosure
(c) Before action commenced

CPLR R. 3025 Amended and supplemental pleadings
(b) Amendments and supplemental pleadings by leave

CPLR § 602 Consolidation
(a) Generally

CPLR § 203 Method of computing periods of limitation generally
(f) Claim in amended pleading

I'm only posting the analysis on this one.  For the facts in their entirety, read the decision.  For a brief intro to the decision, click here.

Bumpus v New York City Tr. Auth., 2009 NY Slip Op 05737 (App. Div., 2nd, 2009)

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., 50 AD2d 462, 467). To be effective, a summons and complaint must describe the unknown party in such a manner that the "Jane Doe" would understand that she is the intended defendant by a reading of the papers (see Olmsted v Pizza Hut of Am., Inc., 28 AD3d 855, 856; Justin v Orshan, 14 AD3d 492; Lebowitz v Fieldston Travel Bur., 181 AD2d 481, 482).

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 (see Hall v Rao, 26 AD3d 694, 695; Justin v Orshan, 14 AD3d 492, 492-493; Opiela v May Indus. Corp., 10 AD3d 340, 341; Tucker v Lorieo, 291 AD2d 261; Porter v Kingsbrook OB/GYN Assoc., 209 AD2d 497). Any failure to exercise due diligence to ascertain the "Jane Doe's" name subjects the complaint to dismissal as to that party (see Hall v Rao, 26 AD3d at 695; Justin v Orshan, 14 AD3d at 492-493; Opiela v May Indus. Corp., 10 AD3d at 341). A second requirement unique to CPLR 1024 is that the "Jane Doe" party be described in such form as will fairly apprise the party that she is the intended defendant (see City of Mount Vernon v Best Dev. Co., 268 NY 327, 331; Olmsted v Pizza Hut of Am., Inc., 28 AD3d at 856; Justin v Orshan, 14 AD3d at 492-493). An insufficient description subjects the "Jane Doe" complaint to dismissal for being jurisdictionally defective (see Lebowitz v Fieldston Travel Bur., 181 AD2d 481, 482-483; Reid v Niagra Mach. & Tool Co., 170 AD2d 662). A third pitfall unique to CPLR 1024 is its interplay with CPLR 306-b.

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 [*3]v Lyondale Energy Ltd. Partnership, 229 AD2d 249, 255)^[FN1]. However, the enactment of CPLR 306-a in 1992 required that actions in Supreme and County Courts be commenced by filing rather than by service (L 1992, ch 216, § 6; see generally Matter of Fry v Village of Tarrytown, 89 NY2d 714, 718-720) and upon filing, CPLR 306-b, which was enacted at the same time as 306-a (L 1992, ch 216, § 7), superimposed the requirement that service of process be effected within 120 days (see CPLR 306-b; see generally Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 100-101). The filing of the summons with notice or summons and complaint fixed the point at which an action was commenced for statute of limitations purpose (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 100; Matter of Gershel v Porr, 89 NY2d 327, 330).

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 non-parties 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, 97 NY2d at 104). To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-06). Good cause will not exist where a plaintiff fails to make any effort at service (see Valentin v Zaltsman, 39 AD3d 852; Lipschitz v McCann, 13 AD3d 417), or fails to make at least a reasonably diligent effort at service (see e.g. Kazimierski v New York Univ., 18 AD3d 820; Baione v Central Suffolk Hosp., 14 AD3d 635, 636-637; Busler v Corbett, 259 AD2d 13, 15). By contrast, good cause may be found to exist where the plaintiff's failure to timely serve process is a result of circumstances beyond the plaintiff's control (see U.S. 1 Brookville Real Estate Corp. v Spallone, 13 Misc 3d 1236[A], quoting Eastern Refractories Co., Inc. v Forty-Eight Insulations, Inc., 187 FRD 503, 505; see also Greco v Renegades, Inc., 307 AD2d 711, 712 [difficulties of service associated with locating defendant enlisted in military]; Kulpa v Jackson, 3 Misc 3d 227, 235 [difficulties associated with service abroad through the Hague Convention]).

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, 259 AD2d at 17). The interest of justice standard does not require reasonably diligent efforts at service, but courts, in making their [*4]determinations, may consider the presence or absence of diligence, along with other factors (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105). The interest of justice standard is broader than the good cause standard (see Mead v Singleman, 24 AD3d 1142, 1144), as its factors also include the expiration of the statute of limitations, the meritorious nature of the action, the length of delay in service, the promptness of a request by the plaintiff for an extension, and prejudice to the defendant (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-106; Matter of Jordan v City of New York, 38 AD3d 336, 339; Estey-Dorsa v Chavez, 27 AD3d 277; Mead v Singleman, 24 AD3d at 1144; de Vries v Metropolitan Tr. Auth., 11 AD3d 312, 313; Hafkin v North Shore Univ. Hosp., 279 AD2d 86, 90-91, affd 97 NY2d 95; see also Slate v Schiavone Const. Co., 4 NY3d 816).

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" for additional time to serve process upon "Jane Doe" defendants who cannot be readily identified.

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 Commentary, McKinney's Cons Laws of NY, CPLR C3102:4, quoting Robinson v Government of Malaysia, 174 Misc 2d 560). While pre-action disclosure is often thought of as a device to enable the plaintiff to frame a complaint (see generally Matter of Wien & Malkin v Wichman, 255 AD2d 244; Matter of Perez v New York City Health and Hosps. Corp., 84 AD2d 789; Matter of Rosenberg v Brooklyn Union Gas Co., 80 AD2d 834; Matter of Urban v Hooker Chems. & Plastics Corp., 75 AD2d 720; Matter of Roland, 10 AD2d 263, 265) or to preserve evidence for a forthcoming lawsuit (see generally Matter of Thomas v New York City Tr. Police Dept., 91 AD2d 898; Gearing v Kelly, 15 AD2d 477; Matter of O'Grady v City of New York, 164 Misc 2d 171, 173; Matter of Spraggins v Current Cab Corp., 127 Misc 2d 774, 775), it has also been recognized as an appropriate device for ascertaining the identities of prospective defendants (see Matter of Alexander v Spanierman Gallery, LLC, 33 AD3d 411; Matter of Toal v Staten Is. Univ. Hosp., 300 AD2d 592; Matter of Stewart v New York City Tr. Auth., 112 AD2d 939, 940; Perez v New York City Health and Hosps. Corp., 84 AD2d at 789; Matter of Bergan v Sullivan Bros. Wood Prods. of Keeseville, 77 AD2d 723; Matter of Roland, 10 AD2d at 265). Plaintiffs' attorneys who are retained sufficiently in advance of the expiration of the statute of limitations may avoid the problem of identifying a "Jane Doe" defendant for service within the time limits of CPLR 306-b, where successful pre-action disclosure results in the identification of the unknown defendant prior to the filing of a summons and complaint.

A second mechanism, available when a governmental entity may know the identify 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, 139 Misc 2d 790, 794 [disclosure of names of prison guards accused of inappropriate behavior]), but exempt from disclosure the employee's home address (see Public Officers Law §§ 87[2][b]; 89[2][b]; 89[7]; Matter of Pasik v State Bd. of Law Examiners, 114 Misc 2d 397, 407-408, mod 102 AD2d 395). Nothing in the Public Officers Law appears to prohibit the disclosure of records identifying an employee's work location and schedule, which was the information that the NYCTA ultimately agreed to provide to the plaintiff's counsel in this instance to enable service of process upon Smith. FOIL requests are designed to be acted upon by public agencies expeditiously, typically within five business days from receipt of a written request for non-exempt records (see Public Officers Law § 95[1][a]). The speed of the statute can prove useful to practitioners who, facing an approaching statute of limitations, seek to identify the "Jane Doe" party prior to the commencement of the action.

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 co-defendants, who may possess information identifying the unknown party, well in advance of the statute of limitations (accord Misa v Hossain, 42 AD3d at 486). Doing so affords two distinct procedural options. If the discovery process would not lead to an identification of the unknown target in sufficient time for service of process upon that party under the limited 120-day deadline of CPLR 306-b, the subsequent disclosure of identifying information will still permit, within the wider statute of limitations, either an amended complaint by stipulation or by leave of court naming the [*5]additional party (see CPLR 3025[b]), or alternatively, the commencement of a timely separate action against the additional party with a view to its later consolidation with the original action (see CPLR 602[a]; cf. Matter of Vogel, 19 Misc 3d 853, 859). Commencing the initial action well before the expiration of the statute of limitations makes service upon the newly-identified party possible. The same result does not inure to practitioners who wait until the limitations period is close to expiring before commencing their actions against known parties.

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 pursuant to the "relation-back" doctrine of CPLR 203(f), based upon post-limitations disclosure of the unknown party's identity (see Reznick v MTA/Long Is. Bus, 7 AD3d 773, 774; Gottlieb v County of Nassau, 92 AD2d 858). The relation-back doctrine allows a party to be added to an action after the expiration of the statute of limitations, and the claim is deemed timely interposed, if (1) the claim arises out of the same conduct, transaction, or occurrence, (2) the additional party is united in interest with the original party, and (3) the additional party knew or should have known that but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against the additional party as well (see Buran v Coupal, 87 NY2d 173, 178). The moving party seeking to apply the relation-back doctrine to a later-identified "Jane Doe" defendant has the added burden of establishing that diligent efforts were made to ascertain the unknown party's identity prior to the expiration of the statute of limitations (see Hall v Rao, 26 AD3d at 695; Scoma v Doe, 2 AD3d at 433; Tucker v Lorieo, 291 AD2d at 262).

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, 56 AD3d 713, 714 with Cooper v New York City Bd. of Educ., 55 AD3d 526), any "Jane Doe" service problem should be proactively addressed by the filing of a motion for a CPLR 306-b extension. Indeed, the promptness of a request for an extension of time to serve a "Jane Doe" defendant is a specific factor that is to be considered by courts in determining "interest of justice" extensions (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-106; Matter of Anonymous v New York State Off. of Children & Family Servs., 53 AD3d 810, 810-811; Rosenzweig v 60 N. St. LLC, 35 AD3d 705; Scarabaggio v Olympia & York Estates Co., 278 AD2d 476, affd 97 NY2d 95). While CPLR 306-b is not construed to require that a motion for a service extension be filed before the expiration of the 120-day statutory period (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 106-07), prompt motions are more likely to be successful (id.; Scarabaggio v Olympia & York Estates Co., 278 AD2d at 476), as they are a sign of diligence, whereas dilatory motions are less so (see Matter of Anonymous v New York State Off. of Children & Family Services, 53 AD3d at 810-811).

The bold is mine.

CPLR § 602 Consolidation
(a) Generally

CPLR § 203 Method of computing periods of limitation generally
(f) Claim in amended pleading

CPLR § 602(a) Consolidation Not Proper

CPLR § 602 Consolidation
(a) Generally

Johnstone-mann v Stout, 2009 NY Slip Op 04829 (App. Div., 4th, 2009)

Memorandum: In action No. 1, the plaintiffs seek damages for injuries sustained by Kim M. Johnstone-Mann when the vehicle she was driving collided with a vehicle driven by Julie M. Stout, a defendant in action No. 1. Julie Stout in turn commenced action No. 2 against Johnstone-Mann, seeking damages arising from the same collision. Supreme Court did not abuse its discretion in granting that part of the motion of the defendants in action No. 1 and the plaintiff in action No. 2 seeking a joint trial of the two actions (see generally Nationwide Assoc. v Targee St. Internal Med. Group, P.C. Profit Sharing Trust, 286 AD2d 717, 718). "Absent a showing of prejudice, a motion . . . for a joint trial pursuant to CPLR 602 (a) should be granted where common questions of law or fact exist" (Spector v Zuckermann, 287 AD2d 704, 706). We conclude, however, that the court erred in granting that part of the motion seeking to bifurcate the trial. " Separate trials on the issues of liability and damage[s] should not be held where the nature of the injuries has an important bearing on the issue of liability' " (Fox v Frometa, 43 [*2]AD3d 1432). Here, evidence of the injuries and resulting amnesia sustained by Julie Stout is " necessary for the . . . purpose of allowing the [trier of fact] to consider whether [she] should be held to a lesser degree of proof' on the issue of liability" (id.; see Schwartz v Binder, 91 AD2d 660). We therefore modify the order accordingly.

The bold is mine.