Ask a Lawyer and Get Answers to Your Legal Questions
Hi - my name is XXXXX XXXXX I'm a litigation attorney. Thanks for your question. I'll be glad to assist.
Having a fictitious defendant is a common issue when a party suing is not sure if he/she knows if there are unknown persons involved in the incident or the business being sued. Usually, you name your John Doe and then allege in the complaint that if and when the true names are XXXXX XXXXX will be inserted in the complaint by amendment.
Fictitious defendants are NOT allowed in federal lawsuits (US District Court), but most state courts permit this.
I was specifically looking for New York state (not New York city)
And small claims court
If the court clerk tells you that you can't file a suit against a fictitious defendant and substitute the real name once you discover it, you should ask where the rule, law or statute on that is - - I don't think they'll be able to provide you with anything.
And I have been told by clerks that this isn't allowed, but have also been told that clerks are sometimes mistaken. So I was looking for what information I can show a clerk who says "no" to get the suit filed.
As I said, the ONLY courts that flat out do not allow fictitious defendants are federal courts, and you're not in that.
Well thank you very much!
It's hard to prove something that doesn't exist - - there's likely not a law that says you can name fictitious defendants; but there's also not likely a law that says you can't.
Thank you, XXXXX XXXXX all very helpful.
That's why it's likely best to ask the court clerk to show you some authority for his/her position if the claim is you can't do this.
If the clerk can't provide anything, then you should be allowed to file your case.
So the clerk generally doesn't have the authority to "reject" a case?
That's not really for the clerk to decide. If you want to file a suit, then the clerk should allow it. It's up to the judge to determine whether or not the case has merit.
OK, thak you very much Kirk! I believe you have answered my question!
Thank! And sorry for the typos!
No problem at all!
Thanks for allowing me to assist. Please let me know if you need anything further.
Have a great day!
Hi Michael -
Thanks for the rating, but I'm going to stay with you for a while to see if I can find any state law that says you can't name a fictitious defendant in NYS.
As I said, the only courts I know that this is not allowed in are federal courts, and generally, all other courts allow for the naming of a fictitious party. That's why I mentioned asking the court clerk to provide you with any authority if he/she is adamant on this issue.
I'm going to do some additional looking to see if I can find anything definitive for you.
I found the following civil practice rule that should answer your question:
NY CLS CPLR § 1024 (2013)
§ 1024. Unknown partiesA party 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 such person as an unknown party by designating so much of his name and identity as is known. If the name or remainder of the name becomes known all subsequent proceedings shall be taken under the true name and all prior proceedings shall be deemed amended accordingly.
Thus, it seems clear that you can name a "John Doe" and amend your pleading to give the proper name once you find it out.
Let me know if you need anything further. THanks.
Sure - just wanted to give you something to go on.
Unless the court has some local rule or provision that trumps this rule, you should be able to do what you're suggesting. So, maybe you can reference the above rule and ask the clerk why this would not apply in your case.
Yes, please do let me know what they say, and if they give you some authority they claim doesn't allow your filing, we can look into it.
I did go to file yesterday. The first thing that the clerk asked me was the address of the defendent, which I also do not have. What I have is an email address, an IP address, and a phone number. Given the IP address, the individual's ISP can be contacted and the IP address information requested. But, that doesn't help when the clerk asks for the address. I attempted to file in my local town court, which I do not believe is the same town as the defendant resides in. Given the IP address, I do believe the person resides in the Chicago metropolitan area, but really can't determine that without the information from the ISP. Any input you could provide would be greatly appreciated. Thanks Again, Michael
Thanks again Kirk!
Hi Michael -
The only thing you can do is show them the rule and ask that they review it and tell you why you can't file as you propose.
If they still resist you, then you're probably going to need to get a local attorney to assist you with getting this accomplished.
I did ask. The clerk directed me to the Law Library where they provided me a copy of section of the Uniform Justice Court Act Small Claim, Section 1803. They said that I would need to file a Summons & Complaint, but I would need a lawyer to do this.
I started looking for an attorney, but wasn't sure what kind I should be looking for. If you have any input, I would greatly appreciate.
Thank you for your time. You have answered several additions to a question that wasn't necessarily straightforward. And you have be extremely responsive, to the point where I sat down in the Court House and sent you a message, thinking I might get a response in a few minutes and be able to act upon it while I was still there. And you did!
Michael - THANK YOU for the kind words, and I'm glad to help.
The best place to find an attorney is www.martindale.com. They're the best attorneys as voted by peers and clients. When you go to the site, click on "Find a Lawyer or Law Firm" and then enter your relevant information for the search - - your location and area of practice (in this type of case, you're likely going to do best with a general civil litigation attorney, or you can peruse several types of lawyers that may be more specific.
Again, thank you for allowing me to assist, and if you need anything further, please let me know.