Salley v. Flake et al

Filing 45

MEMORANDUM AND ORDER: On 6/11/2012, the Court received a 44 letter postmarked 6/6/2012 from Leonard McCallop, a pro se individual identifying himself as Plaintiff's son, indicating his desire that the case proceed and requesting noti fication of further proceedings. Accordingly, if Mr. McCallop wishes to pursue this action, he must provide this Court with evidence on or before 7/15/2012 that he is a "proper party" for substitution, i.e. that: (1) he is a distributee o f Plaintiff's estate and either Plaintiff died destitute or Plaintiff's estate has already been distributed; or (2) he has been designated as the administrator or executor of Plaintiff's estate or is otherwise the estate' s legal representative under New York law. Mr. McCallop must further provide this Court with evidence on or before 7/15/2012 that he has either obtained counsel to represent the interests of Plaintiff's estate or else that there are no other beneficiaries or creditors of Plaintiff's estate who could be impacted by this action. SO ORDERED by Chief Judge Carol Bagley Amon, on 6/15/2012. C/mailed to Leonard McCallop via first class mail. (Latka-Mucha, Wieslawa)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

---------------------------------------------------------J(

JUN 1 5 2012

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BROOKLYN OffICE

LAVERNE SALLEY,
Plaintiff,

Ii; " ~"j<'S OFFICE
,,'~T ~r;URT E.D.N.Y.

MEMORANDUM AND ORDER
lQ-CV-17S4 (CBA)

-againstFLOYD FLAKE, et aI.,
Defendants.

---------------------------------------------------------J(
AMON, Chief United States District Judge.
On February 9, 2012, counsel for various New York City entities who are defendants in
the above-captioned action ("City Defendants"), mailed the Court a letter enclosing a copy of
Plaintiff Laverne Salley's death certificate. D.E. # 40. On March 6,2012, the City Defendants
noticed Salley's death on the record, D.E. # 42, and on March 8, 2012, they filed a Certificate of
Service of the statement noting the death. D.E. # 43.
On June 11,2012, the Court received a letter postmarked June 6, 2012 from Leonard
McCallop, a pro se individual identifying himself as Plaintiff s son, indicating his desire that the
case proceed and requesting notification of further proceedings. D.E. # 44.
Following the death of a party, the possibility of substitution is governed by Fed. R. Civ.
P.2S(a)(I). Pursuant to that rule, "the court may order substitution of the proper party" upon
motion by "the' decedent's successor or representative." A "proper party" for substitution under
Rule 2S(a)(I) may be "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." Lungu v. New Island Hospital/St. Joseph Hospital,

No. CV-II-0755 (SJF)(GRB), 2012 WL 2050205, at *5 (E.D.N.Y. Jun. 4, 2012) (emphasis omitted). Under New York law, which governs whether Mr. McCallop is properly a "successor or
representative" of the decedent, id, a "representative" is "usually the appointed administrator or
executor ofthe decedent's estate." Allen ex rei Allen v. Devine, Nos. 09-cv-668 (ADS)(ETB),
10-cv-1319 (ADS)(ARL), 2011 WL 5117619, at *4 (E.D.N.Y. Oct. 25, 2011); Perlow v.

Comm'r o/Soc. Sec., No. 10-cv-1661 (SLT), 2010 WL 4699871, at *2 (E.D.N.Y. Nov. 10,2010)
(internal quotation marks omitted). In cases where the plaintiff died destitute, a party who is
seeking substitution as a successor and who is not also a representative of the plaintiff s estate
need not show that the estate has been distributed before serving as substitute, as there would not
be any estate to distribute. Perlow, 2010 WL 4699871, at *2
Accordingly, if Mr. McCallop wishes to pursue this action, he must provide this Court
with evidence on or before July 15,2012 that he is a "proper party" for substitution, i.e. that:
(1) he is a distributee of Plaintiffs estate and either Plaintiff died destitute or Plaintiffs
estate has already been distributed; or
(2) he has been designated as the administrator or executor of Plaintiff s estate or is otherwise the estate's legal representative under New York law.
Mr. McCallop must further provide this Court with evidence on or before July 15,2012
that he has either obtained counsel to represent the interests of Plaintiffs estate or else that there
are no other beneficiaries or creditors of Plaintiff s estate who could be impacted by this action.

See Pridgen v. Andersen, 113 F.3d 391,393 (2d Cir. 1997) ("[A]n administratrix or executrix of
an estate may not proceed pro se when the estate has beneficiaries or creditors other than the litigant."); Shapiro v. United States, No. 07 Civ. 161(PKL), 2008 WL 4302614, at *2 (S.D.N.Y.

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Sept. 17,2008) ("There are limitations to an individual's right to proceed pro se ... including the
requirement that a pro se litigant is only pursuing his own personal interests.").

SO ORDERED.

Dated: Brooklyn, N.Y.
Junep,2012

/S/

~olBagleY(~ph) )

Chief United Sta~istrict Judge

Copy mailed to:
Leonard McCallop
P.O. Box 1111
Clayton, NC 27528

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