| Campbell v City of New York |
| 2018 NY Slip Op 01420 |
| Decided on March 1, 2018 |
| Appellate Division, First Department |
| 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. |
Decided on March 1, 2018
Sweeny, J.P., Renwick, Tom, Mazzarelli, Oing, JJ.
5889N 302456/14
v
City of New York, Defendant-Appellant, P.O. "John Doe I," et al., Defendants.
Zachary W. Carter, Corporation Counsel, New York (MacKenzie Fillow of counsel), for appellant.
Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for respondent.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered July 20, 2016, which granted plaintiff's motion to amend the complaint to substitute the names of the arresting officers for John Doe I and John Doe II, unanimously reversed, on the law, without costs, and the motion denied.
Plaintiff's acceptance of an adjournment in contemplation of dismissal bars the malicious prosecution claim (see Hollender v Trump Vil. Coop., 58 NY2d 420, 425-426 [1983]; Probber v Yousef, 5 AD3d 204 [1st Dept 2004]). As to the remaining claims, plaintiff should not have been granted leave to amend his
complaint and substitute the officers' names under the relation back doctrine. The officers are not "united in interest" with the City of New York, the original defendant (see Thomas v City of New York, 154 AD3d 417 [1st Dept 2017]; Higgins v City of New York, 144 AD3d 511 [1st Dept 2016]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 1, 2018
CLERK