Calendar Date: March 30, 2018Before: McCarthy, J.P., Clark, Mulvey, Aarons and Rumsey, JJ.__________Bendall & Mednick, Esqs., Schenectady (J. David Burke ofLaw Offices of J. David Burke, Schenectady, of counsel), forappellant.Bond, Schoeneck & King, PLLC, Albany (Mara D. Afzali ofcounsel), for Jacobs Field Services North America, Inc.,respondent.Napierski, VanDenburgh, Napierski & O’Connor, LLP, Albany(Sara A. McGrath of counsel), for BCI Construction, Inc.,respondent.Milber Makris Plousadis & Seiden, LLP, Woodbury (Lorin A.Donnelly of counsel), for Stanec Consulting Services, Inc.,respondent.Burke, Scolamiero, Mortati & Hurd, LLP, Albany (Judith B.Aumand of counsel), for Madsen Overhead Doors, respondent.__________Aarons, J.Appeal from an order of the Supreme Court (O’Connor, J.),entered October 31, 2016 in Albany County, which, among otherthings, granted motions by defendants Jacobs Field Services NorthAmerica, Inc., BCI Construction, Inc., Stantec ConsultingServices, Inc. and Madsen Overhead Doors for summary judgmentdismissing the fourth amended complaint against them.Plaintiff allegedly sustained personal injuries after anoverhead door fell and struck him on August 4, 2011. Plaintiffthereafter commenced this negligence and strict productsliability action on August 1, 2014. In his initial complaint,plaintiff specifically named certain defendants, who are not atissue here, and designated other corporate defendants as John DoeNos. 1 through 6. Plaintiff then filed an amended complaint inSeptember 2014 identifying defendant Jacobs Field Services NorthAmerica, Inc. as John Doe No. 4. In February 2015, plaintifffiled a second amended complaint identifying defendant BCIConstruction, Inc. as John Doe No. 1. A third amended complaintwas filed in June 2015 identifying Rytec Corporation as John DoeNo. 5.1 Plaintiff, in December 2015, filed a fourth amendedcomplaint identifying defendants Madsen Overhead Doors andStantec Consulting Services, Inc. as John Doe Nos. 3 and 6,respectively. Jacobs Field Services, BCI, Madsen Overhead Doorsand Stantec Consulting (hereinafter collectively referred to asdefendants) separately moved for summary judgment on the basisthat plaintiff’s claims were barred by the applicable statute oflimitations.2 Supreme Court, among other things, granted theseparate motions, prompting this appeal by plaintiff. We affirm.A plaintiff who is unaware of the name or identity of adefendant may proceed against such defendant by designating somuch of his or her name as is known (see CPLR 1024) and must showthat he or she made timely and diligent efforts to ascertain theidentity of an unknown defendant prior to the expiration of thestatute of limitations (see Holmes v City of New York, 132 AD3d952, 953 [2015]; Hall v Rao, 26 AD3d 694, 695 [2006]; Tucker vLorieo, 291 AD2d 261, 261-262 [2002]). In the absence ofevidence that a plaintiff made the requisite timely and diligentefforts to identify an unknown defendant, he or she may not takeadvantage of the procedural mechanism provided by CPLR 1024 (seeTemple v New York Community Hosp. of Brooklyn, 89 AD3d 926, 927[2011]; Luckern v Lyonsdale Energy Ltd. Partnership, 229 AD2d249, 253 [1997]).We conclude that Supreme Court correctly determined thatplaintiff failed to establish that he made timely and diligentefforts to discover defendants’ identities prior to when thestatute of limitations expired on August 4, 2014 (see Walker vHormann Flexon, LLC, 153 AD3d 997, 998 [2017]; Temple v New YorkCommunity Hosp. of Brooklyn, 89 AD3d at 927-928; Porter vKingsbrook OB/GYN Assoc., 209 AD2d 497, 497 [1994], appealdismissed 86 NY2d 871 [1995]). The only action that plaintifftook was retaining counsel on August 1, 2014, three days beforethe statute of limitations expired. Such fact, however, does notrelieve him of his obligation to exercise diligent efforts.Indeed, we note that, upon retention, counsel immediately tookaction by sending an investigator to the accident scene. Thereis no explanation as to why plaintiff waited so long to retaincounsel or any indication that he was somehow precluded fromdoing so prior to the expiration of the statute of limitations.Moreover, contrary to plaintiff’s assertion, preaction discoveryunder CPLR 3102 (c) is not limited to those parties who appearwith counsel.To that end, we reject plaintiff’s assertion that whetherhe exercised due diligence must be measured from the point whenhe retained counsel (see Fountain v Ocean View II Assoc., 266AD2d 339, 340 [1999]). Plaintiff’s additional contention thatthe duty to exercise due diligence for purposes of CPLR 1024commences when litigation is reasonably foreseeable is improperlyraised for the first time on appeal (see MLB Constr. Servs., LLCv Lake Ave. Plaza, LLC, 156 AD3d 983, 985 [2017]) and, in anyevent, is without merit. Accordingly, Supreme Court properlygranted defendants’ separate motions (see Hall v Rao, 26 AD3d at695). Finally, given that plaintiff failed to establish hisentitlement to employ CPLR 1024 in the first instance,plaintiff’s remaining claims regarding CPLR 306-b are academic.McCarthy, J.P., Clark, Mulvey and Rumsey, JJ., concur.ORDERED that the order is affirmed, with one bill of costs.ENTER:Robert D. MaybergerClerk of the Court
