Fourth Department – Amended complaint: Citibank N.A. v. Bailey, et al.

New York State Supreme Court, Appellate Division, Fourth Judicial Department

Amended complaint

Substitution – John and Jane Doe categories

Citibank N.A. v. Bailey, et al.

CA 22-00002

Appealed from Supreme Court, Chautauqua County

Background: The plaintiff commenced a mortgage foreclosure action in 2020 against the decedent and certain John and Jane Does, defined in the complaint as the tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the premises, described in the complaint. Upon learning of the decedent’s death, the plaintiff made an ex parte application seeking to substitute the named defendant as a John Doe defendant and for leave to file an amended complaint. The defendant appeals from an order that denied his motion to dismiss the complaint against him.

Ruling: The Appellate Division reversed. The court held that inasmuch as the original complaint failed to mention the decedent’s death and the defendant is being sued in the amended complaint in his capacity as an heir to the decedent’s estate, the defendant did not fit within the categories of John and Jane Does set forth in the original complaint. Thus, he could not be substituted. Furthermore, the relevant statute of limitations expired prior to the order granting the plaintiff’s ex parte application for leave to file the amended complaint.

Kyle C. Didone, of Rupp Baase Pfalzgraf Cunningham, for the defendant-appellant; Edward Rugino, of Roach & Lin, for the plaintiff-respondent.

Oral argument video