In this action, for false arrest, false imprisonment, excessive force, malicious prosecution, and violations of 42 USC § 1983, plaintiff moves seeking an order granting him leave to amend his complaint to name Police Officer Eugene Donnelly (Donnelly), Sgt. Sasha Rosen (Rosen), and Police Officer Andrew Greges (Greges) as defendants. With respect to these defendants, plaintiff avers that leave to amend the complaint to name them as defendants with respect to his cause of action for malicious prosecution under 42 USC § 1983 is warranted because his claims have merit and because the three-year statute of limitations for this claim has not yet expired. Additionally, with respect to these defendants, plaintiff avers that leave to amend the complaint to assert federal claims for excessive force, false arrest, and false imprisonment and a state law claim for malicious prosecution should be granted because, while time barred against these defendants, pursuant to CPLR § 203(c), these claims relate back to the timely filed claims against the already named defendants, with whom Donnelly, Rosen and Greges are, inter alia, untied in interest. Defendants Donnelly, Rosen, Greges, and the CITY OF NEW YORK (the City) oppose the instant motion on grounds that (1) notwithstanding that absent the applicability of the relation back doctrine, the state law malicious prosecution claim is time barred, denial is nevertheless warranted because plaintiff fails to establish that these defendants initiated his prosecution; an element essential to a malicious prosecution claim; and (2) plaintiffs federal claims for excessive force, false arrest, and false imprisonment are time barred and plaintiff fails to establish that Donnelly, Rosen, and Greges, inter alia, are united in interest with the already named defendants so as to warrant the application of the relation back doctrine.

For the reasons that follow hereinafter, plaintiff's motion is denied.

This is an action for alleged personal injuries resulting from false arrest, false imprisonment, excessive force, malicious prosecution and violations of 42 USC § 1983. Within his complaint, filed on June 22, 2013, plaintiff alleges that on March 22, 2011, while in the vicinity of 1995 Davidson Avenue, Bronx, NY, he was falsely arrested, assaulted, falsely imprisoned, and maliciously prosecuted by defendants the City, COMMISSIONER RAYMOND KELLY IN HIS OFFICIAL CAPACITY, ASSISTANT CHIEF THOMAS PURTELL AS THE COMMANDING OFFICER OF PATROL BORO BRONX, P.O. JESSICA FIGUEROA OF THE 46TH PCT., SHIELD #8633 (Figueroa) and P.O. FIGUEROA'S PARTNER UNDER DOCKET #2011BX016719 S/H/A JOHN/JANE DOE I (Doe). Plaintiff asserts seven causes of action. The first and second sound in common law excessive force, wherein he claims that defendants, without legal cause, seized him in an excessive manner. The third sounds in common law false arrest, wherein plaintiff claims that defendants arrested him without legal process or right. The fourth sounds in common law false imprisonment, wherein plaintiff alleges that he was retrained and detained without a warrant and held for three days. The fifth cause of action sounds in common law malicious prosecution, wherein plaintiff alleges that he was maliciously prosecuted by defendants, who, without probable cause filed [*2]a criminal court complaint falsely accusing him of criminal activity. The sixth cause of action alleges that Figueroa and Doe, by falsely arresting, falsely detaining, maliciously prosecuting, and by employing excessive force upon plaintiff, violated his Fourth and Fourteenth Amendment rights under the United States Constitution and, therefore, violated 42 USC § 1983. The seventh cause of action also alleges a violation of 42 USC § 1983 by the City on grounds that Figueroa and Doe were acting in furtherance of a municipal custom and practice - one whereby officers would falsely arrest, falsely imprison, employ excessive force and maliciously prosecute people without legal cause.

Preliminarily, the Court notes that insofar as on April 18, 2013, this Court granted plaintiff's motion for leave interpose a belated notice of claim as to his state claim for malicious prosecution, by implication his remaining state causes of action, the first four, are no longer viable. Thus, plaintiff's only remaining, timely and properly commenced causes of action are his fifth, sixth and seventh. To be sure, the fifth cause of action for malicious prosecution under state law was timely and properly commenced since leave to interpose a belated notice of claim for this claim was granted, that claim accrued on June 7, 2012, the date the proceeding terminated in plaintiff's favor (Bumbury v City of New York, 62 AD3d 621, 621 [1st Dept 2009]), and this action was commenced on June 22, 2013 (CPLR § 304 "[a]n action is commenced by filing a summons and complaint or summons with notice."), within a year and ninety days of that cause of action's accrual (GML § 50-i, states, in relevant part that any action against the City, its agencies, and employees is "shall be commenced within one year and ninety days after the happening of the event upon which the claim is based."). Plaintiff's sixth cause of action against Figueroa and his seventh cause of action against the City were also timely and properly commenced insofar as they are premised on violations of 42 USC § 1983, for which no notice of claim is required (Burton v Matteliano, 81 AD3d 1272, 1275 [4th Dept 2011]), which claims are governed by a three-year statute of limitations (Mulcahy v New York City Dept. of Educ., 99 AD3d 535, 536 [1st Dept 2012]; Clairol Development, LLC v Village of Spencerport, 100 AD3d 1546, 1547 [4th Dept 2012]; Rimany v Town of Dover, 72 AD3d 918, 921 [2d Dept 2010]), and accrue "when the plaintiff knows or has reason to know of the injury which is the basis of his or her action" (Rimany at 921 [internal quotation marks omitted]; Palmer v State of New York, 57 AD3d 364, 364 [1st Dept 2008]). Thus, here, events comprising plaintiff's causes of action under 42 USC § 1983 generally accrued on March 22, 2011, when he was allegedly assaulted, arrested, and imprisoned and his cause of action for malicious prosecution thereunder accrued on June 20, 2012, when the charges against him were dismissed. Since this action was commenced June 22, 2013, less than three years after the foregoing federal claims accrued, those claims were timely commenced. In fact as noted by the parties while the statute of limitations for all federal claims except the federal claim for malicious prosecution under the sixth cause of action expired in March 2014, three years after accrual, the cause of action thereunder for malicious prosecution, which did not accrue until June 20, 2012, remains timely until June 2015 when the statute of limitations for the same expires.

Plaintiff's motion seeking leave to amend his complaint to name Donnelly, Rosen, and Greges as defendants is denied insofar as plaintiff fails to establish that his claim for malicious prosecution has merit. Moreover, with respect to plaintiff's federal claims for false arrest, false imprisonment, and excessive force pursuant to 42 USC § 1983, plaintiff fails to establish that the proposed defendants are united in interest with the already named defendants and, therefore, these claims are time barred.

As evinced by the papers, albeit in very confusing manner, plaintiff seeks to amend his complaint to add Donnelly, Rosen, and Greges as defendants solely with respect to the cause of action claiming violations of 42 USC § 1983 and one for common law malicious prosecution, since these are the only two remaining causes of action that can be asserted against individual defendants. The seventh cause of action, as already noted, is solely aimed at the City.

Generally, leave to amend a pleading shall be freely granted absent prejudice or surprise resulting directly from the delay in seeking the proposed amendment (McMcaskey, Davies and Associates, Inc. v New York City Health & Hosps. Corp, 59 NY2d 755, 757 [1983]; Fahey v County of Ontario, 44 NY2d 934, 935 [1978]). Delay, however, in seeking leave to amend a pleading is not [*3]in it of itself a barrier to judicial leave to amend, instead, "[i]t must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine" (Edenwald Contracting Co. v City of New York, 60 NY2d 957, 958 [1983]. A failure to adequately explain the delay in seeking to amend the pleadings, if coupled with prejudice, will generally warrant denial of a motion to amend a pleading.

Even if there is no prejudice resulting from the proposed amendment, however, before leave is granted, it must be demonstrated that the proposed amendment has merit (Thomas Crimmins Contracting Co., Inc. v City of New York, 74 NY2d 166, 170 [1989]["Where a proposed defense plainly lacks merit, however, amendment of a pleading would serve no purpose but needlessly to complicate discovery and trial, and the motion to amend is therefore, properly denied."]; Herrick v Second Cuthouse, Ltd., 64 NY2d 692, 693 [1984][Court concluded that defendant could amend its answer when the amendment would not prejudice plaintiff and where the amendment was found to have merit]; Mansell v City of New York, 304 AD2d 381, 381-382 [1st Dept 2003]). Thus, when seeking to amend a complaint the plaintiff must proffer evidence establishing that the proposed amendment has merit (Curran v Auto Lab Serv. Ctr., 280 AD2d 636, 637 [2d Dept 2001]; Heckler Elec. Co. v Matrix Exhibits-N.Y., 278 AD2d 279, 279 [2d Dept 2000]) and the motion to amend should be granted "unless the insufficiency or lack of merit is clear and free from doubt" Noanjo Clothing v L & M Kids Fashion, 207 AD2d 436, 437 [2d Dept 1994]; Weider v Skala, 168 AD2d 355, 355 [1st Dept. 1990) [Court held that plaintiff's proposed amendment to include a tortious interference claim was legally insufficient and was not meritorious. Consequently, the motion seeking leave to amend the complaint to assert that cause of action was denied]).

Moreover, leave to amend a complaint will not be granted unless the proposed amendment, as pled, establishes a cause of action (Thompson v Cooper, 24 AD3d 203, 205 [1st Dept 2005]; Ancrum v St. Barnabas Hosp., 301 AD2d 474, 475 [1st Dept 2003]; Davis & Davis v Morson, 286 AD2d 585, 585 [1st Dept 2001]).

Since the court must examine the proposed pleading for patent sufficiency, it is axiomatic that the proposed pleading must be provided with a motion seeking leave to amend the same and that a failure to do so warrants denial of the motion (Loehner v Simons, 224 AD2d 591, 591 [2d Dept 1996]; Branch v Abraham and Strauss Department Store, 220 AD2d 474, 476 [2d Dept 1995]; Goldner Trucking Corp. v Stoll Packing Corp., 12 AD2d 639, 640 [2d Dept 1960]).

With respect to plaintiff's motion seeking to amend the complaint to name Donnelly, Rosen, and Greges as defendants with respect to his sixth cause of action for malicious prosecution, the motion is denied. Although the statute of limitations for this action has not yet expired, plaintiff fails to proffer evidence establishing that this claim as against the foregoing proposed defendants has merit.

In an action for malicious prosecution a plaintiff must establish (1) that the defendant commenced or continued of a criminal proceeding against him; (2) the termination of the proceeding in his favor; (3) the absence of probable cause for the criminal proceeding; and (4) actual malice (Colon v City of New York, 60 NY2d 78, 82 [1983]; Broughton v State of New York, 37 NY2d 451, 457 [1975]). Failure to establish any one of the elements is fatal (Colon at 84 [Court dismissed plaintiff's claim for malicious prosecution when he could not establish the absence of probable cause.]). In cases of police misconduct, where charges of malicious prosecution are leveled at a police officer, "a malicious-prosecution claim cannot stand if the decision made by the prosecutor to bring criminal charges was independent of any pressure exerted by the police" (Hartman v Moore, 547 US 250, 253 [2006]; Alcantara v City of New York, 646 FSupp2d 449, 457 [SDNY 2009]). This is because there is a presumption that a prosecutor exercises independent judgment in deciding whether to initiate and continue a criminal proceeding (Alcantara at 458). Thus, to establish that a police officer initiated the persecution, the misconduct alleged must be more than merely reporting a crime, or giving testimony; it must be established that the police officer influenced the prosecutor's decision to prosecute (Espada v Schneider, 522 FSupp2d 544, 553 [SDNY 2007] ["Though an officer's corroboration of the facts alleged in the complaint has been held to create a triable issue of fact as to the initiation element of malicious prosecution, we are concerned with the application of [*4]such a rigid rule of causation in this case because Officer Schneider's actions are consistent with merely reporting the results of his investigation and acting at the behest of the prosecuting attorney. Espada has not come forward with any compelling proof of active and purposive conduct on the part of Officer Schneider, such as encouraging or importuning the prosecutor to act, such a claim is not actionable" (internal citations omitted).]). The foregoing, is of course merely the application by our Federal District Courts of well settled state law, holding that

Here, while plaintiff's proposed complaint alleges that Donelly Rosen, and Greges "maliciously prosecuted [him] without the Defendants possessing probable cause to do," he offers no evidence in support of that assertion, which here would require evidence that these proposed defendants did more than disclose facts to the prosecutor. Plaintiff's evidence would have to demonstrate that the proposed defendants influenced the prosecutors decision to prosecute or that the information provided was replete with omissions and misrepresentations. Nothing submitted by plaintiff establishes the foregoing, and contrary to plaintiff's assertion, plaintiff's denial, through testimony, that he possessed the contraband giving rise to his arrest nor any inconsistencies between Figueroa's testimony and the documents created by the City are tantamount to establishing that either Donelly, Rosen, or Greges initiated the prosecution. Accordingly, plaintiff fails to establish the merits of his malicious prosecution claim against Donelly Rosen, and Greges and, therefore, his motion seeking leave to interpose a federal malicious prosecution claim as against them is denied.

For the foregoing reasons, the portion of plaintiff's motion seeking leave to amend the complaint to add Donelly, Rosen, and Greges as defendants for purposes of the time barred state malicious prosecution claim - his fifth cause of action - is denied for the reasons just discussed. Like plaintiff's federal claim of malicious prosecution, in his fifth cause of action for common law malicious prosecution he alleges that defendants "maliciously prosecuted [him], an innocent man without probable cause whatsoever, by filing or causing a Criminal Court complaint to be filed in criminal Court." However, as noted above, plaintiff fails to annex any evidence demonstrating the merits of this cause of action. Even assuming that filing the criminal court complaint could establish that the proposed defendants initiated the prosecution, plaintiff tenders no such evidence.

Plaintiff's motion seeking leave to amend his complaint to add Donelly, Rosen, and Greges as defendants with respect to his now time barred causes of action pursuant to 42 USC § 1983 is [*5]denied insofar as he fails to establish entitlement to the relation back doctrine promulgated by CPLR § 203(c). Specifically, plaintiff fails to establish that Donelly, Rosen, and Greges are untied in interest with the defendants already sued or that these proposed defendants knew or should have known that, but for a mistake by plaintiff as to their identities, the action would have been brought against them.

While generally, an action cannot be commenced after the expiration of the applicable statute of limitations (Marino v Proch, 258 AD2d 628 628 [2d Dept 1999]), pursuant to CPLR § 203(c), "a claim asserted in the complaint is interposed against the defendant or a co-defendant united in interest with such defendant when the action is commenced." In fact, pursuant to the foregoing, our courts have promulgated the "relation back doctrine," which "allows a claim asserted against a defendant in an amended filing to relate back to claims previously asserted against a codefendant for Statute of Limitations purposes where the two defendants are united in interest" (Buran v Coupal, 87 NY2d 173, 177 [1995] [internal quotation marks omitted]). However, the relation back doctrine only allows an otherwise untimely claim against a party who was not timely sued to survive if it is established that (1) both claims - meaning, the one timely interposed and the untimely claim which plaintiff seeks to assert arose out of 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 the identity of the proper parties, the action would have been brought against him as well (id. at 178).

Generally, parties are united in interest when a "judgment against one will similarly affect the other" (27th Street Block Ass'n. v Dormitory Authority of State of New York, 302 AD2d 155, 164 [1st Dept 2002]). Unity of interest, under the second prong of the test, will be found where there is some relationship between the defendants "giving rise to the vicarious liability of one for the conduct of the other (Vanderburg v Brodman, 231 AD2d 146, 147-148 [1st Dept 1997]; Teer v Queens-Long Island Medical Group, P.C., 303 AD2d 488, 489 [2nd Dept 2003]). Vicarious liability often hinges on control, meaning that it will be found when the person in a position to exercise authority or control over the wrongdoer can and must do so or bear the consequences (Kavanaugh v Nussbaum, 71 NY2d 535, 546 [1988]; Vanderburg at 148). Parties are said to be united in interest when "the interest of the parties in the subject-matter is such that they [the parties] stand or fall together and that judgment against one will similarly affect the other" (Vanderburg at 148).

Here, plaintiff fails to establish that the proposed defendants are united in interest with the already sued defendants because nothing submitted establishes that a judgment against one of the parties already sued will similarly affect the proposed defendant. Thus, the proposed defendants are not vicariously liable for the conduct of the already named defendants. Specifically, with respect to plaintiff's sixth cause of action for violations of 42 US § 1983, where plaintiff must establish that the individual police officers acting under color of law, violated federal constitutional or statutory rights (Delgado v City of New York, 86 AD3d 502, 511 [1st Dept 2011] ["A complaint alleging gratuitous or excessive use of force by a police officer states a cause of action under the statute (42 USC § 1983) against that officer."]; Morgan v City of New York, 32 AD3d 912, 914-915 [2d Dept 2006] ["The complaint states a cause of action for violation of the decedent's Fourth Amendment rights pursuant to 42 USC § 1983, alleging both an unreasonable seizure and confinement of the person in the absence of probable cause."]), it could be claimed that the none of these proposed defendants had control over the acts of the other named defendants thereby obviating vicarious liability against the proposed defendants for the acts of the other defendants. The converse is also true. On this issue, plaintiff - other than unsupported assertions - offers no evidence establishing that the proposed defendants are vicariously liable for the acts of the already sued defendants. In fact, while the City could be vicariously liable for the acts of the individual defendants if such acts were [*6]within the scope of their employment ^[FN1] , plaintiff proffers nothing demonstrating that Donnelly, Rosen and Greges would bear liability for the acts of the already named defendant or that a judgment against the already sued defendants would affect Donnelly, Rosen and Greges in any way. This Court is unpersuaded by plaintiff's reliance on Llerando-Phipps v City of New York (390 FSupp2d 372 [SDNY 2005]), since in that case the court in a very conclusory fashion merely stated that the relation back doctrine applied therein because "the individual officers are united parties in interest with their employer, Defendant City of New York" (id. at 385). The court in Llerando-Phipps offered no explanation for its conclusion and its holding must have been, at best, fact specific. Proof that such a determination is factual rather than one as a matter of law lies within GML § 50-k(3), which expressly allows the City to disassociate itself from an employee's behavior, allowing it to refuse representation and indemnification, thus, obviating any unity of interest if "the injury or damage [alleged] resulted from intentional wrongdoing or recklessness on the part of the employee" (GML § 50-k[3]). Clearly then, unity of interest is always a factual determination and in the context of the instant motion, where plaintiff must establish such unity, it is a fact which plaintiff must establish, and one which he was failed to establish.

Similarly, with respect to plaintiff's seventh cause of action against the City, a Monnell claim, there is no evidence that the officers exercised any control over the City so as to make them vicariously liable for the City's conduct. As for the City, as a matter of law, it cannot be vicariously liable for an individuals conduct under a Monnell claim.

Under Monell v Department of Social Services of City of New York (436 US 658 [1977]) a municipality bears liability under 42 USC § 1983 only where the action by its agent "is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers" (Monell at 690).

Accordingly, plaintiff fails to establish unity of interest between defendants, proposed and actually sued, and for this reason alone he cannot be accorded the benefit of the relation back doctrine. The motion to amend the pleadings to assert time bared claims against the proposed defendants is, therefore, denied.

Although the Court need not reach this issue, it bears noting that here, contrary to the assertion by the proposed defendants and the City, the evidence demonstrates that for purposes of the relation back doctrine, the proposed defendants knew or should have known that but for a mistake, this action would have been brought against them.

A plaintiff seeking the benefit of the relation back doctrine prescribed by CPLR § 203(c), [*7]must establish that the new party knew or should have known that, but for an mistake by plaintiff as to the identity of the proper parties, the action would have been brought against him as well (Buran at 178). The purpose of the foregoing rule was aptly articulated in (Brock v Bua, 83 AD2d 61 (1981), where the court stated

Here, however, there is persuasive federal authority which holds that foregoing prong of the relation back doctrine can be satisfied when the proposed defendants share the same government attorney (Hood v City of New York, 739 FSupp 196, 199 [SDNY 1990]), the relevant inquiry requires more. In Hood, the Second Circuit stated that

ORDERED that the City and Figueroa serve a copy of this Decision and Order with Notice of Entry upon plaintiff within thirty (30) days hereof.

This constitutes this Court's decision and Order.

Dated : November 18, 2014

______________________________MITCHELL J. DANZIGER, J.S.C.