In this defamation action, plaintiff Donnell Baines moves for leave to amend his complaint, pursuant to CPLR 3025 (b). The motion is partially opposed by defendant Daily News, L.P., Janon Fisher, Tracy Connor, Shayna Jacobs and John Does #'s 1, 2, 3 and 4 (collectively, the Daily News defendants). Specifically, the Daily News defendants raise two objections to the proposed amendment. First, they object to the plaintiff's inclusion of allegations that the matters reported on in the subject news article were not a matter of public concern. Second, they object to the plaintiff's addition of the following new defendants: Peggy Ackerman, Matthew Leish, Sarah Ryley, "John Doe Confidential Source," Katie Nelson, Robert [*2]Moore, and Gersh Kuntzman.

The original complaint in this action was filed on October 21, 2013. In that complaint, plaintiff Donnell Baines sued to recover damages for alleged "Libel, Slander, Defamation, and Injurious Falsehood" arising out of his criminal trial and subsequent conviction of rape, assault and unlawful imprisonment. The original complaint alleged three causes of action based on: (1) statements about him by defendant "Jane Doe A.K.A. Barbara" (Jane Doe); (2) a news article based on those statements, entitled "Torture of Guilt. Vic: I kept quiet before sex fiend abused others," written by defendants Janon Fisher and Tracy Connor and published in the Daily News on October 12, 2012 (the Article); and (3) a second Daily News article published on April 2, 2013 (the 2013 Article) entitled "'Slavery' pimp will rot in jail," and written by defendant Shayna Jacobs.

Plaintiff served the complaint on the Daily News and the named reporters in February 2014. Also named as defendants were four "John Doe" Daily News editors, described as "the Editor-in-Chief and publisher," "the Managing Editor," "the Supervising Editor," and the editor for all articles published in the internet edition, and Jane Doe. In response, the Daily News defendants moved to dismiss the complaint on various grounds. Plaintiff, in turn, moved to compel the Daily News to disclose the true identities of all of the Doe defendants; to stay the case pending disclosure of their identities; and to extend his time to serve the Doe defendants.

By order dated July 13, 2015, Justice Lucy Billings granted in part and denied in part the motion to dismiss. Justice Billings dismissed the third cause of action based on the 2013 Article written by Shayna Jacobs ^[FN1] and dismissed the second cause of action only to extent the Article reported on plaintiff's trial and conviction, but allowed the claim to proceed with respect to the Daily News reporting of Jane Doe's allegations. Justice Billings also denied plaintiff's motion. With respect to plaintiff's request for the disclosure of the identities of the Doe defendants, she ruled that it was premature and should be sought through normal discovery.

Following this decision, the Daily News defendants served and filed their answer to the complaint on September 18, 2015 and the parties then commenced discovery. Plaintiff served interrogatories on the Daily News at the end of December 2015, and the Daily News served its response on January 21, 2016. In response to plaintiff's request for the names of all persons "having knowledge of the facts of involved in this action," the Daily News identified, among others, Sarah Ryley, identified as "currently Data Project Editor, formerly Courts and Transit Editor" (Leish affirmation dated Aug. 18, 2017, Ex. G at 3). In January 2017, the Daily News defendants responded to plaintiff's request for documents, which was delayed due to preparation and signing of a Confidentiality Agreement. The Daily News also produced a privilege log with respect to its document production. In February 2017, the Daily News served its response to plaintiff's second request for interrogatories (id., Ex. H).

After several unsuccessful attempts to amend his complaint, plaintiff filed the instant motion by notice of motion dated May 23, 2017. The first paragraph of his proposed amended complaint states:

"This is a civil action to address the intentional tort of libel, slander, injurious falsehood, intentional infliction of emotional distress, conspiracy to defame, negligent infliction of [*3]emotional distress, and conspiracy to commit the same, brought against the Defendants for their negligent, grossly irresponsible, and/or malicious speed and/or publication of false statements of and concerning the Plaintiff (underlining in original)"

(Leish affirmation, Ex. M, ¶ 1). Nevertheless, there are still only three causes of action. The first cause of action is for defamation based on the comments made by Jane Doe about plaintiff to reporters Janon Fischer and Tracy Connor on October 23, 2012. The second cause of action sues all of the Daily News defendants (and the newly-added defendants) for defamation for publishing the Article, because plaintiff allegedly did not commit any of the acts attributed to him by Jane Doe. The third cause of action is for defamation based on statements about plaintiff made by "John Doe Confidential Source" to the Daily News defendants.

As stated above, the proposed amended complaint no longer names Shayna Jacobs as a defendant. However, plaintiff seeks to add the following new defendants, all of whom are alleged to have been one of the individuals responsible for the preparation and/or publication of the Article:

Sarah Ryley — alleged to be "the Courts and Transit Editor" for the Daily News (Leish affirmation, Ex. M, ¶ 11);

Matthew Leish — alleged to be "the Vice President" and "Assistant General Counsel" of the Daily News (id., ¶ 13);

Peggy Ackerman- alleged to be the Daily News "Editor" (id., ¶ 14);

Katie Nelson — alleged to be the Daily News "Deputy Managing Editor/Digital" (id., ¶ 15);

Robert Moore — alleged to be an employee of the Daily News with an unknown position (id., ¶ 16);

Gersh Kuntzman - alleged to be an employee of the Daily News with an unknown position (id., ¶ 17); and

John Doe Confidential Source — alleged to be an unknown employee of the Manhattan District Attorneys' Office (id., ¶ 19).

The proposed amended complaint also adds an allegation that the Daily News defendants had been informed, prior to the publication of the Article, that Jane Doe's allegations were false by plaintiff's criminal defense attorney, the Assistant District attorney and the Judge presiding over his criminal trial (see id., ¶¶ 51, 62). While the Daily News defendants originally opposed the addition of this allegation on the ground that that it was untrue and flatly contradicted by the public record of his trial, they have withdrawn this objection on the ground that, while not in any way conceding its truth or accuracy, there is a factual dispute about what may or may not have been stated in open court at his criminal trial (Mem. of Law in Partial Opposition to Motion to Amend, dated Aug. 18, 2017, at 9, n 5; Oct. 19, 2017 transcript at 3-5).

Leave to amend a pleading, pursuant to CPLR 3025 (b], "is freely given 'absent prejudice or surprise resulting directly from the delay'" (O'Halloran v Metro. Transp. Auth., 154 AD3d 83, 86 [1st Dept 2017], quoting Anoun v City of New York, 85 AD3d 694, 694 [1st Dept 2011]). Nevertheless, "leave to amend a complaint is not granted upon mere request without a proper showing. Rather, in determining whether to grant leave to amend, a court must examine the underlying merit of the causes of action asserted therein, since, to do otherwise would be wasteful of judiciary resources" (Wieder v Skala, 168 AD2d 355, 355 [1st Dept 1990] [citations omitted]). "Leave will be denied where the proposed pleading fails to state a cause of action, or [*4]is palpably insufficient as a matter of law" (Thompson v Cooper, 24 AD3d 203, 205 [1st Dept 2005], citing Ancrum v St. Barnabas Hosp., 301 AD2d 474, 475 [1st Dept 2003] and Davis & Davis, P.C. v Morson, 286 AD2d 584, 585 [1st Dept 2001]).

In the proposed amended complaint, plaintiff has added allegations that the statements in the Article regarding Jane Doe's claims were not related to any matter of political, social, or other public concern or exposition, and are merely unsubstantiated rumor, gossip, and prurient interest (see Leish affirmation, Ex. M, ¶¶ 53-54, 78, 109).

In her July 13, 2015 decision and order Justice Billings ruled:

"Although the Daily News defendants' requisite fault to support their liability may depend on the subject of their publication, plaintiff further concedes in opposition to their motion that their articles reported on issues of legitimate public concern, so that, even to be liable for an untrue report, defendants must be grossly irresponsible in their reporting. Crime, the legal process, and the penalties imposed on crimes through that legal process legitimately concern the public and warrant public exposition. E.g., Weiner v. Doubleday & Co., 74 NY2d at 595; Karaduman v. Newsday, 51 NY 531, 539 (1980); Sarwer v. Conde Nast Publs., 237 AD2d 191, 192 (1st Dep't 1997); Sheridan v. Carter, 48 AD3d 447, 448 (2nd Dep't 2008). Newspaper editors' determination of a subject's newsworthiness is evidence in itself of the public's interest in the subject. Huggins v. Moore, 94 NY2d 296, 305 (1999); Weiner v. Doubleday & Co., 74 NY2d at 595."

(July 13, 2015 Decision and Order at 15). Thus, Justice Billings went on to apply the gross irresponsibility standard to the Article's summary of Jane Doe's allegations about her dealings with the plaintiff (id. at 16-18).

Since the court has already ruled that the statements attributed to Jane Doe are matters of public interest, this ruling, which was not timely appealed or reargued, is law of the case and may not be relitigated (Strook & Strook & Lavan v Beltramini, 157 AD2d 590, 591 [1st Dept 1990]). In fact, plaintiff has basically conceded that the gross irresponsibility standard is law of the case (see Mem. of Law in Reply to Defendants' Partial Opp. to the Motion For Leave to Amend, dated August 31, 2017, at 24-25; Oct. 19, 2017 transcript at 11-12).

Even if this ruling were not law of the case, this court wholly concurs with Justice Billings' determination. The gross irresponsibility standard applies to a new article "where the content of the article is arguably within the sphere of legitimate public concern, which is reasonably related to matters warranting public exposition" (Chapadeau v Utica Observer-Dispatch, 38 NY2d 196, 199 [1975]). Jane Doe's allegations regarding plaintiff's treatment of her were directly related to the plaintiff's criminal trial, and thus a matter of legitimate public concern, and this court should not "second-guess" the Daily News on its decision to print her story absent clear abuse (Weiner v Doubleday & Co., 75 NY2d at 595; Gaeta v New York News, 62 NY2d 340, 349 [1984]).

The Daily News defendants also oppose the addition of all of the new defendants, arguing that since the Daily News and the actual writers of the Article are all already defendants, plaintiff's attempt to add the defendants' attorney and a random assortment of current and former editors, "most of whom had little or nothing to do with the Article, as well as a group of vaguely described John Does, is largely a pointless distraction" (Mem. of Law in Partial Opposition to Motion to Amend, dated Aug. 18, 2017, at 10). The statute of limitations is also raised as a bar to adding these new defendants.

Plaintiff advances two arguments to escape the one-year statute of limitations for [*5]defamation claims. First, he contends that the newly-named defendants are simply the true names of the previously named "John Doe" defendants. Second, he contends that the claims against the newly-named defendants "relate back" to the date the original complaint was filed.

CPLR 1024 allows a plaintiff who is unaware of the name of a proper defendant to "proceed against such person as an unknown party by designating so much of his name as is known. If the name . . . becomes known all subsequent proceedings shall be taken under the true name and all prior proceedings shall be deemed amended accordingly." However, a John Doe summons and complaint "is jurisdictionally sufficient only if the actual defendants are 'adequately described and would have known, from the description in the complaint, that they were the intended defendants" (Lebowitz v Fieldston Travel Bur., 181 AD2d 481, 482 [1st Dept 1992] [citation omitted]; see also Olmstead v Pizza Hut of Am., Inc., 28 AD3d 855, 856 [3d Dept 2006]). In addition, the plaintiff must show that he made genuine efforts to ascertain the John Doe identities prior to the expiration of the statute of limitations (Goldberg v Boatmax://, Inc., 41 AD3d 255, 256 [1st Dept 2007]; Tucker v Lorieo, 291 AD2d 261, 261 [1st Dept 2002]).

In this case, the description of the four John Doe defendants in the original complaint, i.e., "Editor-in-Chief and publisher," "the Managing Editor," "the Supervising Editor," and "editor for internet edition," does not adequately describe the seven newly-named defendants, and those defendants could not have known from the complaint that they were the intended defendants. This is particularly the case for attorney Matthew Leish and "John Doe Confidential Source" since they are not editors for or the publisher of the Daily News. Indeed, at oral argument of the motion, plaintiff conceded that the four John Doe editors are limited to Peggy Ackerman, Katie Nelson, Robert Moore, and Sarah Ryley (Oct. 19, 2017 transcript at 14-16). According to defendants' counsel, Robert Moore was one of several managing editors at the Daily News at the time the Article was published (Leish affirmation, ¶ 37). The court, however, finds that the brief description of John Doe # 2, i.e., "the Managing Editor," was not sufficient to place this defendant on notice that he was an intended defendant in this lawsuit. Again, plaintiff himself claims that Mr. Moore was not this John Doe, but John Doe # 4 (Oct. 19, 2017 transcript at 16). Nothing in the original complaint gives notice that the plaintiff intended to later add as a defendant every single Daily News employee that had anything to do with the investigation, writing and publishing of the Article, which he is now attempting to do via CPLR 1024.

Plaintiff also relies on the relation back doctrine, which "allows a claim asserted against a defendant in an amended pleading to relate back to claims previously asserted against a codefendant for Statute of Limitations purposes" (Buran v Coupal, 87 NY2d 173, 177 [1995]; see also CPLR 203 [f]). This doctrine is aimed at liberalizing strict formalistic requirements while respecting the important policies inherent in the statute of limitation, one of which is to protect a defendant from the obligation of defending stale and ancient claims where evidence has been lost, memories have faded and witnesses have disappeared (Duffy v Horton Mem. Hosp., 66 NY2d 473, 476-477 [1985]). The three conditions that must be satisfied are that:

"(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 the new party will not be prejudiced in maintaining its defense on the merits by the delayed, otherwise stale, commencement; and (3) the new party knew or should have known that, but for an excusable mistake by the plaintiff in originally failing to identify all the proper parties, the action would have been brought against the additional party united in interest as well"

(Mondello v New York Blood Ctr.—Greater NY Blood Program, 80 NY2d 219, 226 [1992] [citation omitted]; see also Buran v Coupal, 87 NY2d at 176). "[U]nity of interest will not be found unless there is some relationship between the parties giving rise to the vicarious liability of one for the conduct of the other" (Valmon v 4 M & M Corp., 291 AD2d 343, 344 [1st Dept 2002]).

Starting with "John Doe Confidential Source," alleged to be an unknown member of the Manhattan District Attorney's Office, this person is clearly not united in interest with the Daily News Defendants, and the motion to amend is denied as to this newly-named defendant.

Matthew Leish was the Daily News' Assistant General Counsel at the time the Article was published and his only role in connection with the Article was to provide privileged and undiscoverable legal advice to his client (Leish affirm., ¶¶ 46-47 & Ex. P). Thus, there could be no reason whatsoever for Mr. Leish to have believed himself to be a possible defendant in this defamation action but for an excusable mistake on plaintiff's part. In addition, Mr. Leish is co-lead counsel in this case, and plaintiff has already taken the position that adding him as a defendant would require his disqualification.^[FN2] Thus, allowing the amendment would potentially prejudice the Daily News Defendants by depriving them of their right to be represented by an attorney of their choice (360 W. 11th LLC, 90 AD3d 552, 553-554 [1st Dept 2011]).

As for Peggy Ackerman, Katie Nelson, Robert Moore and Gersh Kuntzman, plaintiff makes no showing that any of these individuals were more than just peripherally involved in the publication of the Article, and thus would have had no way of knowing that they were an intended defendant in this lawsuit. For example, Katie Nelson was copied on a single email dated October 24, 2012 from Sarah Ryley entitled "Court/Transit Skeds," summarizing activity and coverage of various ongoing court and transit stories (Leish affirmation, Ex. I).

Sarah Ryley is the only newly-named defendant that was identified by the Daily News as a person with knowledge "of some facts at issue in this litigation" (Leish affirmation, Ex. G at 3). Ms. Ryley also apparently authored and was copied on several emails regarding the Article back in October 2012 (id., Exs. I & P), and has been identified "as the courts editor who supervised these reporters" (Oct. 19, 2017 transcript at 32). The Daily News defendants do not contend that the addition of Ms. Ryley as a defendant does not satisfy the first two elements of the relation back doctrine. Their only objection is that plaintiff was made aware of her identity in January 2016, upon receipt of the Daily News defendants' response to plaintiff's first set of interrogatories, but waited over a year before attempting to add her as a defendant. Citing Goldberg v Boatmax (41 AD3d 255 [1st Dept 2007]), the court is urged to deny the motion.

In the Goldberg case, because the plaintiff knew the identifies of the intended defendants nearly one year before moving to amend his complaint, the First Department ruled that his [*6]failure to name them earlier "could not be characterized as a mistake for relation-back purposes" (id. at 256). This reliance on the Goldberg case ignores two key facts. First, the plaintiff is an incarcerated prisoner, and is self-represented, while the plaintiff in Goldberg was represented by counsel. Second, since the Daily News defendants had not produced any documentary evidence until January 2017, the court finds that the plaintiff exercised enough due diligence that his amendment to add Sarah Ryley should not be denied on this basis.

In summary, it is

ORDERED that the plaintiff's motion for leave to amend his complaint is granted, in part, and denied in part; and it is further

ORDERED that the motion is denied with respect to any allegations that the statements in the Article regarding Jane Doe's claims were not related to any matter of political, social, or other public concern or exposition; and it is further

ORDERED that the motion is also denied with respect to the addition of any new defendants other than, Sarah Ryley; and it is further

ORDERED that plaintiff is directed to serve and file a newly-drafted amended complaint in accordance with this decision and order no later than sixty (60) days from service of a copy of this decision and order with notice of entry; and it is further

ORDERED that the defendants shall serve/file an answer to the amended complaint within thirty (30) days of the service/filing of the amended complaint.