Worrell v. Astrue

Filing 18

MEMORANDUM AND ORDER. Worreii-Ross's motion to substitute herselfas plaintiff in this action is denied with leave to renew upon the filing of the necessary supplemental documents on or before August 12, 2013. In the eventmovant ca nnot obtain the documentation in a timely fashion, that is, before August12, 2013, the time to file such supplemental documentation will be extended,provided that, on or before August 12, 2013, movant makes a filing showing diligenteffort to obtain t he documentation, including a copy of Worreii-Ross's actualapplication to Surrogate's Court for such documentation, and provided further thatSurrogate's Court either has not denied letters of administration to Worrell-Ross or, if such letters have been awarded to another person, cannot certify that Worrell-Ross is a distributee of an administered estate. Ordered by Judge Eric N. Vitaliano on 6/26/2013. C/M (Siegfried, Evan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

------------------------------------------------------------x
ERNELL E. WORRELL,
Plaintiff,

MEMORANDUM AND
ORDER

-against1:12-CV-3386 (ENV)
CAROLYN W. COLVIN, Commissioner of
Social Security,
Defendant.

x

VIT ALIANO, D.J.
On July 6, 2012,pro se plaintiffErnell E. Worrell filed the instant
action, pursuant to 42 U.S.C. § 405(g), challenging the Commissioner of Social
Security's ("the Commissioner") final decision that the Social Security
Administration ("SSA") had properly computed the amount of her disabled adult
child insurance benefits (payable on her late mother's earnings record) for the
period March 1985 through December 1995. On May 1, 2013, the Commissioner
moved to remand Worrell's case for a rehearing. Less than two weeks later, by
letter dated May 13,2013, Daisy Worrell-Ross informed the Court that plaintiff had
passed away on May 8, 2013 and sought to be substituted as plaintiff in her stead.
Armed with Daisy Worrell-Ross's letter, the Commissioner filed a suggestion of
death on May 30, 2013. At the Court's direction, the Commissioner next filed a
brief detailing its view as to whether plaintiff's death terminated her claim. On
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June 25, 2013, Worrell-Ross filed a response, to which she appended supporting
documents showing that, in 1994, plaintiff conferred upon her a power of attorney
and appointed her to act as her representative in connection with her disability
benefits claim under the Social Security Act (the "Act").
Discussion
Rule 25(a)(1) of the Federal Rules of Civil Procedure permits
substitution by another for a deceased party to a civil action if (1) the claim of a
deceased plaintiff survives that party's death; (2) the individual seeking to be
substituted is a "proper party;" and (3) the party requesting substitution moves
"within 90 days after service of a statement noting the death."
1. Survival of the Claim
The Court looks first to whether the statute under which plaintiff is
suing contains a "specific directive" regarding the survival of plaintiff's claim in the
event oftbe claimant's death. Perlow v. Comm'r of Soc. Sec., 2010 WL 4699871
(E.D.N.Y. Nov. 10, 2010). The Act provides that, if an individual dies before
receiving a Title II underpayment to which be is entitled, SSA will distribute the
amount to certain individuals according to a statutorily established priority. See 42
U.S.C. § 404(d). Worrell's claim, therefore survives her death. See Divone v. Sec'y

of Dep't of Health & Human Servs., 1989 WL 12643 (E.D.N.Y. 1989) (identifying the
survival of the right to reimbursement as the proper inquiry). The Commissioner
has not advanced a contrary view.

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2. Timeliness
Pursuant to Rule 25(a)(1), the party seeking substitution must move
the Court within 90 days of "service of a statement noting the death" of the party
for whom substitution is sought. Although service of the statement typically begins
the 90 day period, Unicorn Tales v. Banerjee, 138 F.3d 467, 470 (2d Cir.1998), courts
have construed a motion for substitution to be a notice of death when a party's
death is first mentioned in the substitution motion. See, e.g., United States v. Arena,
2007 WL 2907492 (E.D.N.Y. 2007). Here, Worrell-Ross's May 131h letter both
informed the Court of plaintiff's death and moved for substitution. Accordingly,
the Court deems the letter to be a timely-filed motion for substitution under the
applicable rule.
3. Proper Party for Substitution
Either a "representative of the deceased party's estate" or a "successor
of the deceased party" may be substituted for a plaintiff who has passed away.

Garcia v. City of New York, 2009 WL 261365, at *1 (E.D.N.Y. 2009) (citations and
internal quotation marks omitted). Courts look to state law to define the terms
"representative" and "successor." /d. (citing Collins v. American Auto. Ins. Co., 230
F.2d 416 (2d Cir.1956)). A "representative is a person who has received letters to
administer the estate of a decedent." N.Y. Est. Powers & Trusts Law§ 1-2.13
(McKinney); see also Perlow v. Comm'r ofSoc. Sec., 2010 WL 4699871, at* 2
(E.D.N.Y. 2010); Garcia, at* 1. "A successor of the deceased party is a distributee
of the decedent's estate if the estate has been distributed at the time the motion for
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substitution is made." Id. (internal quotations omitted). Courts generally reserve
judgment as to whether a movant is a proper party for substitution when the
movant fails to establish the he is either a representative or a successor. Perlow,
2010 WL 4699871 (aggregating cases).
Although Worrell-Ross has demonstrated that she represented her late
sister before her death during the course of the underlying administrative
proceeding relating to plaintiff's claim for benefits under the Act and had a power
of attorney for other matters, she has not demonstrated that she has been "lawfully
designated by state authority to represent the deceased's estate." Lungu v. New

Island Hosp./St. Joseph Hosp., CV-11-0755 SJF GRB, 2012 WL 2050205 at *5
(E.D.N.Y. June 4, 2012). Nor has she established that she is a distributee of
plaintiff's administered estate. As a result, movant has not demonstrated that she is
a proper party for substitution at this point. These showings for a deceased who
passes in New York ordinarily require documentation from the Surrogate's Court
sitting in the county where the deceased was a resident, in this case Kings County,
that is, Brooklyn. However, Worrell-Ross's window to perfect her motion has not
closed. She may make supplementation to her timely motion for substitution on or
before August 12, 2013.
Conclusion
For the foregoing reasons, Worreii-Ross's motion to substitute herself
as plaintiff in this action is denied with leave to renew upon the filing of the

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necessary supplemental documents on or before August 12, 2013. In the event
movant cannot obtain the documentation in a timely fashion, that is, before August
12, 2013, the time to file such supplemental documentation will be extended,
provided that, on or before August 12, 2013, movant makes a filing showing diligent
effort to obtain the documentation, including a copy ofWorreii-Ross's actual
application to Surrogate's Court for such documentation, and provided further that
Surrogate's Court either has not denied letters of administration to Worrell-Ross
or, if such letters have been awarded to another person, cannot certify that WorrellRoss is a distributee of an administered estate.

SO ORDERED.
Dated:
Brooklyn, New York
June 26, 2013

s/ ENV
ERIC N. VlTAtiANO
United States District Judge

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