Sosa v. Doe et al

Filing 100

OPINION & ORDER re: 86 MOTION to Dismiss filed by William Geimano, Richard Brown, Robert Strell, John Sproule, Frank Hernandez, Dennis Bustos, Sean Brew, 74 MOTION U Visa Certification filed by Geurys Sosa, 88 MOTION to Dismiss filed by Fernando Guimaraes, Frank Feliciano, William Logan, Nelson Pabon, City of New York. For the foregoing reasons, the Court GRANTS the Federal and City Defendants' Motions to Dismiss. As no claims remain, the Court does not reach Sosa's Motion for U Visa certification. The Clerk of Court is respectfully directed to terminate the motions, Docs. 74, 86, and 88, and to close the case (Signed by Judge Edgardo Ramos on 4/22/2020) (mro) Transmission to Orders and Judgments Clerk for processing.

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
GEURYS SOSA,
Plaintiff,
– against –
DENNIS BUSTOS, RICHARD
BROWN, ROBERT STRELL, JOHN
SPROULE, WILLIAM GEIMANO,
SEAN BREW, FRANK HERNANDEZ,
FRANK FELICIANO, FERNANDO
GUIMARAES, NELSON PABON,
WILLIAM LOGAN, and CITY OF
NEW YORK,

OPINION & ORDER
17 Civ. 417 (ER)

Defendants.
RAMOS, D.J.:
Geurys Sosa brings this complaint alleging violations of his civil and
constitutional rights pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) against Dennis Bustos and
Richard Brown, employees of Immigration and Customs Enforcement and Removal
Operations (“ICE”); Robert Strell and John Sproule, employees of the Drug Enforcement
Administration (“DEA”); and William Geimano, Sean Brew, and Frank Hernandez,
employees of Homeland Security Investigations (collectively, the “Federal Defendants”);
as well as against New York Police Department (“NYPD”) officers, Frank Feliciano,
Fernando Guimaraes, Nelson Pabon, and William Logan (collectively, the “Individual
City Defendants”), and the City of New York (the “City”) (together, the “City
Defendants”). Doc. 31.
Before the Court are three motions: (1) the Federal Defendants’ motion to
dismiss, Doc. 86; (2) the City Defendants’ motion to dismiss, Doc. 88; and (3) Sosa’s
motion for U Visa certification, Doc. 74. For the reasons stated below, the Federal and

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City Defendants’ motions are GRANTED. Because no claims remain, the Court need not
reach Sosa’s motion for U Visa certification.
I.

BACKGROUND
A. Factual Background
Sosa alleges that on January 27, 2016, at approximately 4:00 PM, federal agents

and members of the NYPD entered his residence pursuant to a search warrant.1 Doc. 31
¶ 1. One of the individuals approached him and, without cause, struck him repeatedly on
the head with a firearm. Id. Sosa lost consciousness and fell to the floor. According to
disclosures provided by the United States Attorney’s Office (the “U.S. Attorney’s Office”)
and the City of New York Law Department (the “Law Department”), the individual
defendants were the only law enforcement officers “that entered [his] residence and/or
were present in [his] apartment building at the time [he] was repeatedly struck in the head
with a firearm.” Id. ¶ 2. As a result of being struck on the head, Sosa suffered a fractured
skull and other serious physical and emotional injuries. E.g., id. ¶ 27.
Sosa was arrested as a result of the search; however, the record is silent as to the
details of that arrest, including as to whether it was conducted pursuant to a valid arrest
warrant or whether it was the result of the officers’ search of the apartment.
B. Procedural History
On April 21, 2016, before he commenced this action, Sosa served the City with a
Notice of Claim relating to this incident, and he was examined by the City in connection
with this Notice of Claim on July 15, 2016. Id. ¶¶ 19–21.
Sosa originally filed this case, pro se and in forma pauperis, on January 19, 2017,
against three John Does at ICE, the DEA, and the Federal Bureau of Investigation
(“FBI”), as well as against the United States Department of Justice (“DOJ”) alleging that
his civil rights were violated “when a law enforcement agent hit me on the head with his
gun.” Doc. 2 at 2. He stated that some of the officers were wearing uniforms that said
1

pe record is silent as to the basis for the warrant.

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“ICE” and “POLICE,” and that others were in plainclothes. Id. at 3. On February 15,
2017, the Court issued an Order dismissing claims against DOJ, interpreting Sosa’s
claims as against both federal law enforcement officers and NYPD (in part because some
of the officers’ uniforms allegedly said “POLICE”), and directing the Law Department
and the U.S. Attorney’s Office to ascertain the identities of the John Doe Defendants and
their addresses and to provide this information to Sosa, pursuant to Valentin v. Dinkins,
121 F.3d 72, 76 (2d Cir. 1997) (the “Valentin Order”). Doc. 5. pe Court instructed Sosa
to file an amended complaint naming the John Doe Defendants within thirty days of
receiving this information. Id. at 5.
pe Law Department requested that Sosa provide more information regarding the
John Doe officers, as well as an extension of time to respond to the Valentin Order. Doc.
7. pe Court granted this request. A second request for an extension of time, requested in
part because Sosa had failed to provide the releases necessary to investigate his claim,
was also granted. Doc. 11. On August 2, 2017, the Law Department requested to be
excused from the Valentin Order, Doc. 12, but the application was denied, Doc. 13. pe
docket then went silent for nearly two years.
On April 9, 2019, the Court directed the parties to provide a status update. Doc.
14. At that point, the City Defendants represented that they had complied with the
Court’s Valentin Order to the best of their ability, but had not heard from Sosa, including
about whether his address had changed. Doc. 16. Sosa represented that he had not
received any information to assist him in identifying the John Doe officers. Doc. 15. He
also stated that, on October 31, 2018, he had sent a letter to the U.S. Attorney’s Office
requesting that they comply with the Valentin Order. Id. pe U.S. Attorney’s Office, in
turn, wrote the Court that it had only just learned about the case against it and requested
an extension of time to identify the federal officers allegedly involved. Doc. 18. It
provided this information on May 28, 2019. Doc. 23. In the course of its investigation,
the U.S. Attorney’s Office also identified other NYPD officers who may have been
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involved and disclosed these to the Law Department, which supplemented its disclosures
on June 11, 2019. Doc. 28. Approximately three-and-a-half years after the incident, on
June 24, 2019, having secured counsel, Sosa submitted an Amended Complaint naming
these officers, as well as the City of New York, as defendants. Doc. 31. In the Amended
Complaint, Sosa brings claims pursuant to Bivens and § 1983, alleging that Defendants
violated his Fourth Amendment right to be free from unreasonable seizure; as well as
state law claims against the City Defendants for assault and battery.
On October 14, 2019, Sosa petitioned this Court for U Visa certification. Doc. 74.
pe Federal Defendants moved to dismiss the Amended Complaint as against them
pursuant to Federal Rule of Civil Procedure 12(b)(6) on January 20, 2020, Doc. 86, and
the City Defendants moved for the same on January 21, 2020, Doc. 88.
II.

LEGAL STANDARD
“To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim is facially plausible “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). pe plaintiff must allege
sufficient facts to show “more than a sheer possibility that a defendant has acted
unlawfully.” Id. (citing Twombly, 550 U.S. at 556).
pe question on a motion to dismiss “is not whether a plaintiff will ultimately
prevail but whether the claimant is entitled to offer evidence to support the claims.” Sikhs
for Justice v. Nath, 893 F. Supp. 2d 598, 615 (S.D.N.Y. 2012) (quoting Villager Pond,
Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995)). “[T]he purpose of Federal Rule
of Civil Procedure 12(b)(6) is to test, in a streamlined fashion, the formal sufficiency of
the plaintiff’s statement of a claim for relief without resolving a contest regarding its
substantive merits” or “weigh[ing] the evidence that might be offered to support
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it.” Halebian v. Berv, 644 F.3d 122, 130 (2d Cir. 2011) (internal quotation marks and
citations omitted). Accordingly, when ruling on a motion to dismiss pursuant to Rule
12(b)(6), the Court accepts all factual allegations in the complaint as true and draws all
reasonable inferences in the plaintiff's favor. Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir.
2014); see also Twombly, 550 U.S. at 556 (“[A] well-pleaded complaint may proceed
even if it strikes a savvy judge that actual proof of those facts is improbable and that
recovery is very remote and unlikely.” (internal quotation marks and citation omitted)).
III.

DISCUSSION
Before the Court are two motions filed by the Federal and City Defendants to

dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons,
both motions are GRANTED.
A. Ee Federal Defendants’ Motion to Dismiss
pe Federal Defendants move to dismiss the Bivens claims against them, arguing
that Sosa’s claims present a new Bivens context, and that special factors counsel against
expanding Bivens to this context. Sosa, in turn, argues that this case falls squarely within
Bivens. pe Court agrees with the Federal Defendants.
In Bivens, the Supreme Court recognized an implied damages action “to
compensate persons injured by federal officers who violated the [Fourth Amendment’s]
prohibition against unreasonable search and seizures.” Ziglar v. Abbasi, 137 S. Ct. 1843,
1854 (2017). However, the Court has since become increasingly cautious before finding
new implied causes of action, id. at 1855–57, clarifying that “expanding the Bivens
remedy is now a ‘disfavored’ judicial activity,” id. at 1857 (quoting Iqbal, 556 U.S. at
675). pe Supreme Court has therefore set forth a two-step inquiry for determining
whether a Bivens remedy is available. First, courts must consider “whether a case
presents a new Bivens context.” Id. at 1859. pe Court has previously recognized a
Bivens remedy in only three situations: (1) in Bivens itself, the Court recognized a Fourth
Amendment claim “against FBI agents for handcuffing a man in his own home without a

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warrant,” id. at 1860; in Davis v. Passman, 442 U.S. 228 (1979), the Court recognized a
Fifth Amendment challenge “against a Congressman for firing his female secretary,”
Abbasi, 137 S. Ct. at 1860.; and in Carlson v. Green, 446 U.S. 14 (1980), the Court
recognized an Eighth Amendment claim “against prison officials for failure to treat an
inmate’s asthma,” Abbasi, 137 S. Ct. at 1860. If the case at hand differs “in a meaningful
way from previous Bivens cases . . . then the context is new. Id. at 1859. A nonexhaustive list of factors to consider includes:
[T]he rank of the officers involved; the constitutional right at issue;
the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or
emergency to be confronted; the statutory or other legal mandate
under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the
presence of potential special factors that previous Bivens cases did
not consider.
Id. at 1860. If the case presents a new Bivens context, the Court must next consider
whether there are “special factors counselling hesitation.” Id. at 1857 (internal quotation
marks and citation omitted). pis inquiry concentrates on “whether the Judiciary is well
suited, absent congressional action or instruction, to consider and weigh the costs and
benefits of allowing a damages action to proceed.” Id. at 1858.
pe Federal Defendants argue that this case differs from Bivens, the only
potentially analogous case, primarily because “the right to be free of unreasonable
warrantless search and detention (Bivens) is distinct from the right to be free of excessive
force in the context of an otherwise lawful arrest carried out in the course of executing a
lawful search pursuant to a warrant.” Doc. 87 at 4. pey further argue that the “legal
mandate” of the officers in this case differs from that of the officers in Bivens because,
here, “the Federal Defendants . . . carried out their search pursuant to a valid warrant
supported by probable cause and signed by a judicial authority, and did not implicate
Plaintiff’s privacy rights in the same manner as discussed in Bivens.” Id. at 5. Moreover,

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they argue that Sosa at no time alleges that the Federal Defendants lacked probable cause
to arrest him. Id.
As an initial matter, Sosa disputes the Federal Defendants’ characterization of the
Amended Complaint. He argues that “[i]n the present case, like in Bivens, the officers did
not possess an arrest warrant, and . . . that at the moment he was unlawfully seized inside
his home, there was no probable cause to arrest him.” Doc. 94 at 5. Sosa admits that at
no time “did [he] formally allege” that the Federal Defendants lacked probable cause to
arrest him; however, he argues that his complaint should be read to suggest just this by
virtue of the fact that it alleges that he was “unreasonably seized in violation of the
Fourth Amendment,” and that he was arrested before a search (which could have led to
probable cause) had been conducted. Id. at 5 n.1. Nowhere in Sosa’s counseled,
Amended Complaint, however, is there an iota of a suggestion that the Federal
Defendants lacked a valid warrant for his arrest or that they did not have probable cause
to arrest him. “[I]t is axiomatic that the Complaint cannot be amended by the briefs in
opposition to a motion to dismiss.” O’Brien v. Nat’l Prop. Analysts Partners, 719 F.
Supp. 222, 229 (S.D.N.Y. 1989). Sosa’s amended complaint can only be properly read to
bring claims for excessive force, not for warrantless arrest, against the Federal
Defendants. As such, these are the claims the Court will consider.
Courts in this Circuit—and indeed, in this District—are split as to whether
excessive force claims present a new context under Bivens, and the Second Circuit has
yet to weigh in on the question. Some courts—like those in Martinez v. D’Agata, No. 16
Civ. 44 (VB), 2019 WL 6895436 (S.D.N.Y. Dec. 18, 2019) and Rivera v. Samilo, 370 F.
Supp. 3d 362 (E.D.N.Y. 2019)—have found that the right at issue in Bivens was primarily
a privacy right, not a right to be free of excessive force. As such, they have found that
excessive force claims present a new Bivens context. Other courts, however, have held
that Bivens also involved a claim “that unreasonable force was employed in making the
arrest,” and that the plaintiff was entitled to recover for “any injuries . . . suffered as a
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result of the agents’ violation of the [Fourth] Amendment.” Bivens, 403 U.S. at 389, 397;
see Lehal v. Cent. Falls Det. Facility Corp., 13 Civ. 3923 (DF), 2019 WL 1447261, at
*10–12 (S.D.N.Y. Mar. 15, 2019); Bueno Diaz v. Mercurio, 19 Civ. 1319 (AT), 2020 WL
1082482, at *2–5 (S.D.N.Y. Mar. 5, 2020). pough the plaintiff in Bivens did, indeed,
bring claims for excessive forms, that case, by its own terms, concerned “primarily rights
of privacy.” Bivens, 403 U.S. at 390; see also Martinez, 2019 WL 6895436, at *7. pere
is no such constitutional right to privacy at issue here. Given the Supreme Court’s
guidance that Bivens must be read narrowly, see, e.g., Abbasi, 137 S. Ct. at 1856–57, the
Court therefore finds that Sosa’s claims concern a different constitutional right than the
one at issue in Bivens.
Moreover, the law enforcement officers in this case were acting pursuant to a
different legal mandate. In Bivens, the officers lacked both a warrant and probable cause
to arrest the plaintiff. pis lack of a warrant effectively gave rise to the plaintiff’s Fourth
Amendment claim. Indeed, subsequent cases have described the claim in Bivens as “a
claim against FBI agents for handcuffing a man in his own home without a warrant.”
Abbasi, 137 S. Ct. at 1860. Here, as discussed above, Sosa not only concedes that the
officers had a valid warrant to enter his home, but makes absolutely no allegations that he
was ultimately arrested without either a warrant or probable cause. pe Court therefore
finds that the officers’ legal mandate in this case also differs from that of the officers in
Bivens. See also Rivera, 370 F. Supp. 3d at 369 (“Plaintiff’s arrest was made upon
probable cause after a valid vehicle search conducted with probable cause. pe officers in
Bivens arrested the plaintiff in his home without a warrant and without probable cause.”).
As currently alleged in Sosa’s complaint, his claims involve both a different
constitutional right and a different legal mandate than in Bivens, and therefore present a
new Bivens context.
Having found that the case presents a new context, the Court must next consider
whether there are “special factors counseling hesitation” in recognizing a new Bivens
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remedy. Abbasi, 137 S. Ct. at 1857. pe Federal Defendants argue that the availability of
the Federal Tort Claims Act (“FTCA”) as a potential remedy for Sosa’s claims presents
one such “special factor.” Sosa does not dispute this in his opposition. pe FTCA was
once considered “parallel” and “complementary” to a Bivens remedy. Carlson, 446 U.S.
at 19–20. However, that is no longer the case. As the Court in Abbasi observed, “when
alternative methods of relief are available, a Bivens remedy usually is not.” Abbasi, 137
S. Ct. at 1863. pe Supreme Court has further held that alternative remedies “need not be
perfectly congruent” to preclude a Bivens remedy. Minneci v. Pollard, 565 U.S. 118, 129
(2012). Courts in this District have therefore found that, post-Abbasi, “the FTCA as a
potential remedy counsels hesitation in extending a Bivens remedy.” Abdoulaye v.
Cimaglia, No. 15 Civ. 4921 (PKC), 2018 WL 1890488, at *6 (S.D.N.Y. Mar. 30, 2018);
see also Rivera, 370 F. Supp. 3d at 370; Morgan v. Shivers, No. 14 Civ. 7921 (GHW),
2018 WL 618451, at *6 (S.D.N.Y. Jan. 29, 2018). pe Court agrees, and declines to find
a Bivens remedy in this new context.2
pe Court therefore GRANTS the Federal Defendants’ motion to dismiss the
claims against them pursuant to Rule 12(b)(6).
B. Ee City Defendants’ Motion to Dismiss
City Defendants argue that the claims against them should be dismissed for two
reasons: (1) because they fail to relate back to the Original Complaint and are therefore
time-barred and (2) because the state law claims against them are procedurally barred.
Te Relation-Back Doctrine
Under Federal Rule of Civil Procedure 15, an amendment relates back to the date
of the original pleading if it asserts a claim that “arose out of the conduct, transaction, or
occurrence set out—or attempted to be set out—in the original pleading.” Fed. R. Civ. P.

2

pe fact that Sosa’s remedy under the FTCA is currently time-barred is inapposite. See Rivera, 370 F.
Supp. 3d at 370 (“pe present unavailability of an FTCA claim is immaterial to the analysis of whether the
existence of an adequate alternative process counsels in favor of judicial restraint.” (citations omitted)).

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15(c)(1)(B). When the amendment adds new defendants, it will relate back only if the
new parties “received such notice of the action that [they] will not be prejudiced in
defending on the merits” and “knew or should have known that the action would have
been brought against [them], but for a mistake concerning the proper party’s identity.”
Id. 15(c)(1)(C). However, “[c]ourts must examine the ‘controlling body of limitations
law,’ and apply state law if it provides ‘a more forgiving principle of relation back than
the one provided’ by Rule 15(c).” Strada v. City of New York, No. 11 Civ. 5735 (MKB),
2014 WL 3490306, at *5 (E.D.N.Y. July 11, 2014) (quoting Hogan v. Fischer, 738 F.3d
509, 518 (2d Cir. 2013)). Because New York law provides more forgiving principles of
relation back, see, e.g., Hogan, 738 F.3d 509, the Court will examine whether the
proposed claims would be made timely through the application of New York law.
City Defendants maintain that, under the relevant statute of limitations, the claims
against them expired by the time Sosa filed his Amended Complaint.3 Sosa does not
dispute this, but instead argues that the claims against the Individual City Defendants
relate back to the Original Complaint pursuant to New York Civil Practice Law and Rules
(“C.P.L.R.”) § 1024, and that his claims against the City relate back pursuant to C.P.L.R.
§ 203. pe Court considers each of these arguments in turn.
a. C.P.L.R. § 1024
C.P.L.R. § 1024 requires that plaintiffs making claims against John Doe
defendants meet two requirements: (1) the “party must exercise due diligence . . . to

3

Sosa brings claims against the City Defendants under both 42 U.S.C. § 1983 and New York state law. For
Section 1983 claims, courts in this Circuit “apply the statute of limitations for personal injury actions under
state law.” Hogan, 738 F.3d at 517. In New York, the statute of limitations for a § 1983 claim is therefore
three years. Id. pese claims accrue “‘when the plaintiff kn[ew] or ha[d] reason to know of the injury.’”
Allen v. Antal, No. 665 F. App’x 9, 12 (2d Cir. 2016) (quoting Singleton v. City of New York, 632 F.2d 185,
191 (2d Cir. 1980)). State law claims against the City and its employees must be brought within one year
and ninety days. See N.Y. Gen. Municipal L. § 50-i. “[A]n assault and battery claim accrues on the date of
the assault or battery.” Quiles v. City of N.Y., No. 01 Civ. 10934 (LTS) (THK), 2003 WL 21961008, at *6
(S.D.N.Y. Aug. 13, 2003). Sosa alleges that he was struck on the head by a law enforcement officer on
January 27, 2016. Doc. 31 ¶ 1. Accordingly, Sosa’s § 1983 claims expired on January 27, 2019, and his
state law claims expired on April 27, 2017, both long before Sosa filed his Amended Complaint.

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identify the defendant by name,” and (2) the party must “describe the John Doe party in
such form as will fairly apprise the party that he is the intended defendant.” Hogan, 738
F.3d at 519 (internal quotation marks and citations omitted) (collecting cases); see
also N.Y. C.P.L.R. § 1024 (McKinney). Generally, a complaint “must provide the
defendant with ‘fair notice of what the plaintiff’s claim is and the grounds upon which it
rests.’” Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 346 (2005) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). But a plaintiff “‘who is ignorant, in whole or in part, of
the name or identity of a person who may properly be made a party,’ may proceed against
that party by designating a fictitious name (a ‘John Doe’) until they become aware of that
party’s identity.” Barrett v. City of Newburgh, 720 F. App’x 29, 32 (2d Cir. 2017) (citing
N.Y. C.P.L.R. § 1024 (McKinney)).
Courts generally give pro se plaintiffs a reasonable “opportunity for discovery to
learn the identities of responsible officials.” Davis v. Kelly, 160 F.3d 917, 921 (2d Cir.
1998). pe general principal that “a tort victim who cannot identify the tortfeasor cannot
bring suit,” is “relaxed” for pro se litigants and trial courts are encouraged “to assist a pro
se plaintiff in identifying a defendant.” Valentin, 121 F.3d at 75. However, even pro se
litigants have a responsibility to exercise due diligence in identifying potential John
Does. Due diligence “requires that a plaintiff ‘show that he or she made timely efforts to
identify the correct part[ies] before the statute of limitations expired.” Strada, 2014 WL
3490306, at *5 (internal quotation marks and citations omitted). “A plaintiff exercising
due diligence will take concrete and timely steps to ascertain an officer defendants’
identity, for example by submitting multiple discovery demands, requests under state or
federal Freedom of Information laws, or requests to the Attorney General’s office.”
Barrett, 720 F. App’x at 33. “Federal and New York courts have held that where there is
no indication in the record that a plaintiff has exercised due diligence prior to the statute
of limitations, a plaintiff is not entitled to make use of the ‘John Doe’ procedure provided

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in CPLR § 1024.” Ceara v. Deacon, 68 F. Supp. 3d 402, 409 (S.D.N.Y. 2014) (collecting
cases).
Here, Sosa claims that he acted diligently because he timely filed a Notice of
Claim against the City and described the Individual City Defendants at the resulting 50-h
hearing. He also maintains that he provided further assistance to the Law Department
when it requested more information about the individuals involved, and that he wrote to
the U.S. Attorney’s Office on October 31, 2018 requesting that they respond to the
Court’s Valentin Order, notifying them that he was no longer incarcerated, and providing
his new address. Sosa further claims that the Valentin Order did not require him to
amend his complaint until he had heard back from both the City and the Federal
Defendants. Doc. 93 at 7–8. Notwithstanding that many of these facts are outside of the
Amended Complaint, none of them excuse the fact that Sosa went silent on the docket for
nearly two years. At no point did he write the Court to advise it of the difficulty he was
having obtaining responses to the Valentin Order, or to provide his new address.
Moreover, his letter to the U.S. Attorney’s Office is irrelevant to Sosa’s course of action
in obtaining information about the City Defendants.
As such, Sosa cannot meet the due diligence requirements of C.P.L.R. § 1024, and
his claims against the Individual City Defendants must be dismissed as time barred.
b. C.P.L.R. § 203
Sosa next argues that his claims against the City—asserted for the first time in the
Amended Complaint—are proper and within the statute of limitations because he has met
the requirements of C.P.L.R. § 203. In New York, claims against one defendant may
relate back to claims asserted against another if:
(1) both claims arose out of the same conduct, transaction, or occurrence, (2) the new party is ‘united in interest’ with the original defendant, and by reason of that relationship can be charged with such
notice of the institution of the action that he will not be prejudiced
in maintaining his defense on the merits, and (3) the new party knew
or should have known that, but for a[ ] . . . mistake by plaintiff as to

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the identity of the proper parties, the action would have been brought
against him as well.
DaCosta v. City of New York, 296 F. Supp. 3d 569, 585 (E.D.N.Y. 2017) (internal
quotation marks and citation omitted). pe primary consideration is “whether the
defendant could have reasonably concluded that the failure to sue within the limitations
period meant that there was no intent to sue that person at all and that the matter had been
laid to rest as far as [it was] concerned.” Buran v. Coupal, 87 N.Y.2d 173, 181 (1995)
(internal quotation marks and citation omitted).
pe City does not dispute that the claims arose out of the same occurrence, or that
it is united in interest with the Individual City Defendants. pe key question, then, is
whether the omission of the City in the Original Complaint was a mistake. “Most federal
district courts have held that the term ‘mistake’ in CPLR 203 should be given the same
meaning as the term is given in Rule 15(c)(1)(C) of the Federal Rules of Civil
Procedure.” DaCosta, 296 F. Supp. 3d at 587. In explaining what constitutes a
“mistake” for purposes of Rule 15(c), the Supreme Court has held:
pat a plaintiff knows of a party’s existence does not preclude [him]
from making a mistake with respect to that party’s identity. A plaintiff may know that a prospective defendant—call him party A—exists, while erroneously believing him to have the status of party B.
Similarly, a plaintiff may know generally what party A does while
misunderstanding the roles that party A and party B played in the
“conduct, transaction, or occurrence” giving rise to [his] claim. If
the plaintiff sues party B instead of party A under these circumstances, she has made a “mistake concerning the proper party’s identity” notwithstanding her knowledge of the existence of both parties.
pe only question under Rule 15(c)(1)(C)(ii), then, is whether party
A knew or should have known that, absent some mistake, the action
would have been brought against him.
Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 549 (2010). In other words, “a plaintiff
might know that the prospective defendant exists but nonetheless harbor a
misunderstanding about his status or role in the events giving rise to the claim at issue,
and [he] may mistakenly choose to sue a different defendant based on that

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misimpression.” Id. “pat kind of deliberate but mistaken choice,” however, “does not
foreclose a finding that Rule 15(c)(1)(C)(ii) has been satisfied.” Id.
pe City does not argue that Sosa omitted it from his Original Complaint to gain
some kind of “tactical advantage,” or that he otherwise acted in bad faith. See, e.g.,
Buran, 87 N.Y.2d at 181. Instead, the City argues that Sosa’s mistake is not the type
contemplated by the relation-back doctrine because it has nothing to do with a lack of
knowledge as to the City’s “conduct or liability.” Doc. 99 at 9. It further argues that it
did not have notice of the action because “[t]here is nothing within the four corners of the
original complaint to indicate that the City should have known it was to be a party. pere
is no description of the City or its agents, including applicable allegations, to alert it of
this fact.” Id. at 9–10.
pe Court disagrees with this statement, but only as it relates to the City’s agents,
that is, to the Individual City Defendants. pe Court’s previous Valentin Order clearly
interpreted Sosa’s claims as against NYPD officers. Doc. 5 at 4–5. It did not, however,
interpret Sosa’s claims as against the City. Nor is there anything in Sosa’s Original
Complaint that would have suggested such liability. For example, Sosa did not mention
that the John Doe officers acted pursuant to a City policy or practice. As such, Sosa’s
failure to add the City as a party was not so much a mistake as it was a pure omission.
pis is not such a case where a prospective defendant “understood, or . . . should have
understood, that [it] escaped suit during the limitations period only because the plaintiff
misunderstood a crucial fact about [its] identity.” Id. at 550. “A prospective defendant
who legitimately believed that the limitations period had passed without any attempt to
sue him has a strong interest in repose.” Id.
pe Court therefore finds that the claims asserted against the City do not relate
back to the Original Complaint, and that, therefore, these are also barred by the statute of
limitations.

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Case 1:17-cv-00417-ER Document 100 Filed 04/22/20 Page 15 of 15

State Law Claims
pe City Defendants initially argue that the state law claims must be dismissed
against them because Sosa failed to file a Notice of Claim within the applicable time
period. In opposition, Sosa maintains that he did file such a Notice of Claim, and this fact
is alleged in his Amended Complaint. Regardless of whether or not a Notice of Claim
was filed, however, Sosa still had an obligation to bring any state law claims against the
City Defendants within the applicable statute of limitations, in this case, within one year
and ninety days. See Sanders v. City of New York, No. 12 Civ. 113 (PKC) (LB), 2015 WL
1469514, at *20 (E.D.N.Y. Jan. 7, 2015). Sosa failed to do so. As such, all state law
claims must be dismissed.
IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS the Federal and City Defendants’

Motions to Dismiss. As no claims remain, the Court does not reach Sosa’s Motion for U
Visa certification. pe Clerk of Court is respectfully directed to terminate the motions,
Docs. 74, 86, and 88, and to close the case.
SO ORDERED.
Dated:

April 22, 2020
New York, New York
EDGARDO RAMOS, U.S.D.J.

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