Summary
finding substitution motion timely where it was made outside the 90-day timeframe and the court granted the plaintiffs an extension of time to file
Summary of this case from Temple v. ArquittOpinion
00 Civ. 9062 (RWS)
November 19, 2003
DENNIS H. HRANITZKY, ESQ., HELEN Y. KIM, ESQ., DEBEVOISE PLIMPTON, New York, NY, Of Counsel for Plaintiffs
DOUG LASDON, ESQ., New York, NY, for Plaintiffs
ADAM J. WASSERMAN, ESQ., SWIDLER, BERLIN, SHEREFF, FRIEDMAN New York, NY, Of Counsel for Plaintiffs
HILLARY A. FROMMER, ESQ., New York, NY, Of Counsel for Defendant
OPINION
Plaintiffs James Roe and Hilton Perez ("Plaintiffs") have moved to substitute Henry J. Becker ("Becker") as plaintiff in place of John B, pursuant to Rule 25(a) of the Federal Rules of Civil Procedure.
For the reasons set forth below, Plaintiffs' motion for substitution is granted.
Prior Proceedings
This action was commenced on November 11, 2000 when Plaintiffs filed their complaint.
On April 11, 2003, defendants City of New York, New York City Police Commissioner Raymond W. Kelly, and New York City Police Officers Lance Ho, Thomas Hickey, and Paul Demorato (collectively the "Defendants") filed a Suggestion of Death of Plaintiff John B., based on a November 22, 2002 letter from Plaintiffs' counsel that John B. died in or about early March 2002. This Suggestion of Death was endorsed on April 15, 2003.
The Suggestion of Death states that "[u]pon information and belief, to date, no executor or administrator had been appointed on plaintiff's behalf."
Plaintiffs' request to extend the deadline to file a motion for substitution until July 25, 2003 was granted on July 17, 2003.
On July 25, 2003, Plaintiffs' moved to substitute Becker for John B. Plaintiffs' motion for substitution was marked fully submitted on October 15, 2003.
The Facts
The facts are set forth based upon the parties' pleadings and supporting declarations.
John B. died intestate. After his death, no court appointed an executor or administrator for his estate. John B. never married and did not have any children. At the time of his death, John B.'s property consisted of various personal belonging and no other assets. John B.'s property was dispersed among his parents and siblings. Becker was John B.'s father.
Rule 25(a)(1)
Federal Rule of Civil Procedure 25(a)(1) provides:
If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party. . . . Unless the motion for substitution is made not later than 90 days after the death is suggested upon the record by service of a statement of the fact of the death . . . the action shall be dismissed as to the deceased party.
Discussion I. Plaintiffs' Motion for Substitution is Timely
In a footnote, Defendants suggest that Plaintiffs' motion for substitution is untimely. (Defs.' Mem. at 4 n. 1.) Rule 25(a)(1) provides for a 90-period from the suggestion of death for a motion for substitution to be made. However, on July 17, 2003, Plaintiffs were granted an extension to file a motion for substitution until July 25, 2003. See Billups v. West, No. 95 Civ. 1146, 1998 U.S. Dist. LEXIS 9583, at *3 (June 25, 1998) ("[G]ranting extensions to plaintiff's time to move for substitution are to be liberally granted absent bad faith on the part of the movant or prejudice to the other parties to the suit.") (internal quotations omitted); see also Staggers v. Otto Gerdau Co., 359 F.2d 292, 296 (2d Cir. 1966). Defendants were further on record as not opposing Plaintiffs' request. Accordingly, Plaintiffs' motion for substitution, filed and served on July 25, is timely. II. Rule 25(a)(1) Allows for Substitution in this Case
The conditions for substitution under Fed.R.Civ.P. 25(a)(1) are met. On April 15, 2003, Defendants filed a Rule 25(a) Suggestion of Death for Plaintiff John B, endorsed by the Court.
Moreover, John B.'s claims asserted in this action have not been extinguished by his death. The Second Circuit has held that a claim survives the injured party's death "if applicable state law creates a right of survival." Barrett v. United States, 689 F.2d 324, 331 (2d Cir. 1982) (holding that a cause of action under 42 U.S.C. *sec; 1983 survived injured party's death). Here, the applicable law is New York Estates, Powers and Trusts Law *sec; 11-3.2(b), which states, "No cause of action for injury to person or property is lost because of the death of the person in whose favor the cause of action existed." As previously held, John B. demonstrated "injury in fact," and thus he can be substituted as plaintiff. See Roe v. City of New York, 151 F. Supp.2d 495, 504-06 (S.D.N.Y. 2001) (holding that plaintiffs, including John B., have demonstrated "injury in fact").
III. Becker is a Proper Party for Substitution
A "proper party" for substitution under Rule 25(a)(1) is "either (1) a successor of the deceased party — a distributee of an estate if the estate of the deceased has been distributed at the time the motion for substitution has been made, or (2) a representative of the deceased party — a person lawfully designated by state authority to represent the deceased's estate."Billups, 1998 U.S. Dist. LEXIS 9583, at *3 (internal quotations and citations omitted; quoting Gronowicz v. Leonard, 109 F.R.D. 624, 626 (S.D.N.Y. 1986); Gayle v. New York State Div. of Parole, No. 95 Civ. 10552, 1997 WL 53156, at *1 (S.D.N.Y. Feb. 10, 1998)).
Here, John B. died intestate, and after his death no court appointed an executor or administrator for his estate. John B. never married and had no children. His property, consisting only of personal belongings, was dispersed among his parents and siblings. Thus, pursuant to N.Y. Estates Powers Trusts *sec; 4-1.1(a)(4), the distributees of John B.'s estate are his parents. Becker, John B.'s father, is therefore a proper party for substitution under Rule 25(a)(1).
The Smith and Coverdale cases, cited by Defendants, hold that a deceased's attorney is not a proper representative under Rule 25(a)(1) and are inapposite here. In the Smith case, the suggestion of death was invalid since it was made by the deceased's attorney. As the court explained, "the attorney for the decedent has no authority to suggest the death of his or her client upon the record. The attorney is not a party to the action and the attorney's authority to represent the decedent terminated upon death." Smith v. Planas, 151 F.R.D. 547, 549-50 (S.D.N.Y. 1993). Here, by contrast, the suggestion of death was made by Defendants, who are parties to this action by definition. Coverdale held that "[a] lawyer who represented a party before that party's death is not a `representative' within the meaning of Rule 25, and consequently cannot continue an action on behalf of the decedent unless asked to do so by a representative of the estate." Coverdale v. Apel. No. 98 Civ. 2531, 1999 U.S. Dist. LEXIS 9549, at *2 (S.D.N.Y. June 22, 1999). Here, Plaintiffs' motion is made by parties to this action, as provided by Rule 25, and it is authorized by a distributee of John B.'s estate.
Defendants next argue that Becker has no standing as he cannot adequately represent the purported class. However, Becker need not personally meet the requirements of being a class representative in order to substitute for John B. in this litigation. Rule 25(a) provides a procedural devise allowing for the substitution of a party in order for litigation on a decedent's behalf to continue. The substitute is thus not litigating on his or her own behalf and need not have standing in his personal capacity, but rather stands in the shoes of the decedent.E.g., Stern v. Gen. Elec. Co., 837 F. Supp. 72, 73 n. 1 (S.D.N.Y.) (noting that representatives were substituted on deceased plaintiff's behalf); Kamerman v. Steinberg, 681 F. Supp. 206, 216 (S.D.N.Y. 1988) (allowing substitution by an executrix of a deceased shareholder-plaintiff's estate because securities actions survive plaintiff's death without any discussion as to whether the executrix was personally a shareholder).
In Saylor v. Basted, the Second Circuit allowed the substitution of a deceased shareholder-plaintiff by the executors of his estate in a derivative action, holding that the executors would possess "shareholder" standing as long as the decedent did because any shares owned by the decedent "passed into [his] estate `by operation of law.'" 623 F.2d 230, 237-38 (2d Cir. 1980). Thus, so long as John B.'s right to bring this action survives his death and passes into his estate, Becker, as representative of John B.'s estate, is a proper party for substitution.
Conclusion
Plaintiffs' motion for substitution is thereby granted.
It is so ordered.