Thomas et al v. Ortiz et al

Filing 183

MEMORANDUM AND ORDER granting 180 Motion to Substitute Party. The Court grants Carol Nyack's motion for substitution. Accordingly, the Complaint is deemed amended to substitute Carol Nyack as plaintiff, as successor to Sheldon Nyack. If Carol Nyack receives letters of limited administration, he shall move to amend the complaint to reflect that he is the representative of the estate of Sheldon Nyack. Ordered by Magistrate Judge James R. Cho on 6/3/2024. (JDP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------------------TEVON THOMAS, MATTHEW NELSON, BILLY
HIPPOLYTE, GARY JEANTY, MILTON SEARS,
DAVID ALCINDOR, SHELDON NYACK, RAVIN
COX, ZANDA DEWAR, HERBY AIME, JOBE
LEEMOW, and MARKOUS FRAY,

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Plaintiffs,
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-against:
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JOEBIAN ORTIZ, ALFREDO SKELTON, WILLIAM :
RUSSO, PETER CARRETTA, and GARY MARCUS, :
et al.,
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Defendants.
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JAMES R. CHO, United States Magistrate Judge:

MEMORANDUM AND
ORDER
No. 14-CV-7513-ARR-JRC

Currently pending before this Court is non-party Carol Nyack’s motion pursuant to Rule
25(a) of the Federal Rules of Civil Procedure to substitute himself for plaintiff Sheldon Nyack
(“decedent”), following Sheldon Nyack’s death. See Motion to Substitute Party (“Substitution
Motion”), Dkt. 180. Defendants oppose the motion for substitution and consent to an extension of
time to re-file the motion until Carol Nyack has received letters to administer the estate of the
decedent. See Response in Opposition (“Def. Opp.”), Dkt. 182. For the reasons that follow, the
motion for substitution is granted.
Relevant Factual and Procedural Background
On December 26, 2014, plaintiffs commenced this civil rights action pursuant to 42 U.S.C.
§ 1983 alleging that defendants violated their constitutional rights. See Compl., Dkt. 1. This action
relates to the May 15, 2014 execution of a search warrant on two apartments in Brooklyn, New
York by the New York City Police Department, which resulted in the arrests of 25 individuals and
the detention without arrest of several others. See id.

In early 2022, the parties reached a settlement on behalf of all parties other than plaintiffs
Tevon Thomas and the decedent. See Notice of Settlement, Dkt. 167. Defendants had made an
offer to settle the claims of Sheldon Nyack, but he passed away in 2021. See Def. Opp. at 1;
Suggestion of Death, Dkt. 166. Apparently, defendants are still prepared to honor that offer, and
Sheldon’s father, Carol Nyack, has agreed, in principle, to accept the offer. See Def. Opp. at 1.
Following the filing of a Suggestion of Death by defendants on November 17, 2021, this
Court granted several extensions of time to file a motion for substitution, with defendants’ consent.
See, e.g., Order dated Feb. 22, 2022; Order dated June 2, 2022; Order dated Sept. 12, 2022; Order
dated Oct. 14, 2022; Order dated Jan. 31, 2023; Order dated May 11, 2023. After plaintiffs filed
yet another request for an extension on August 29, 2023, the Court directed plaintiffs to show cause
why a motion for substitution could not be filed prior to formal appointment of a representative of
the decedent’s estate. See Order dated Nov. 2, 2023. Rather than respond to the order to show
cause, the instant motion to substitute followed.
Sheldon Nyack is survived by his parents, Carol Nyack and Cynthia Innis, and had no issue.
See Substitution Motion, Ex. 3, Dkt. 180-3 (Affidavit of Cynthia Innis). On October 10, 2022,
Carol Nyack filed a petition for limited letters of administration for the prosecution of this action.
See id., Ex. 1, Dkt. 180-1 (Petition for Letters of Limited Administration). Cynthia Innis,
Sheldon’s mother, executed a waiver in which she consented to Carol Nyack’s petition for limited
letters of administration. See id., Ex. 2, Dkt. 180-2 (Waiver of Citation, Renunciation and Consent
to Appointment of Administrator). The petition has been pending before the Surrogate’s Court
since October 2022. 1 See id., Ex. 4, Dkt. 180-4 (Surrogate’s Court docket sheet).

1

The Court takes judicial notice of the publicly-available docket sheet from the Surrogate’s Court,
which shows that, to date, the petition for limited letters of administration remains pending.
2

Discussion
Pursuant to Rule 25, “[i]f a party dies and the claim is not extinguished, the court may order
substitution of the proper party.” Fed. R. Civ. P. 25(a)(1). “A motion for substitution may be made
by any party or by the decedent’s successor or representative.” Id. (emphasis added). To
substitute a party under Rule 25, (1) the motion must be made “within 90 days after service of a
statement noting the death,” (2) the party sought to be substituted for the decedent must be a
“proper party,” and (3) the “claim is not extinguished.” Id.
Defendants oppose the motion for substitution solely on the ground that Carol Nyack is not
a “proper party” because he has not been appointed administrator of the estate of Sheldon Nyack.
See Def. Opp. at 2. According to defendants, the Court must “permit the process to continue
through Surrogate’s Court” before finding that Carol Nyack is a proper party. See id.
Under Rule 25, a “proper party” for substitution is (1) a “successor of the deceased party”
or (2) a “representative of the deceased party,” which is determined by New York law. See Galeas
v. Houslanger & Assocs., PLLC, No. 19-CV-4270, 2021 WL 2843214, at *3 (E.D.N.Y. June 21,
2021); Official Comm. of Unsecured Creditors of Exeter Holdings, Ltd., v. Haltman, No. 13-CV5475, 2017 WL 9485707, at *3-*4 (E.D.N.Y. Aug. 3, 2017), report and recommendation adopted,
2017 WL 3981299 (E.D.N.Y. Sept. 11, 2017). Under New York law, a “representative is a person
who has received letters to administer the estate of a decedent.” N.Y. Est. Powers and Trusts § 12.13; see Official Committee, 2017 WL 9485707, at *4; English v. Murphy-Lattanzi, No. 12-CV4179, 2015 WL 630248, at *3 (E.D.N.Y. Feb. 12, 2015). Since Carol Nyack has not yet been
appointed administrator of the decedent’s estate, defendants are correct that he cannot qualify as a
“representative.”
Next, the Court must consider whether Carol Nyack qualifies as a “successor” of the
decedent. “[A] person may qualify as a decedent’s legal successor under Rule 25(a)(1) if she is:
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(1) the primary beneficiary of an already distributed estate; (2) named in a will as the executor of
the decedent’s estate, even if the will is not probated, or (3) the primary beneficiary of an
unprobated intestate estate which need not be probated.” CFS 12 Funding LLC v. Wiesen, No. 21CV-9711, 2023 WL 3817910, at *2 (S.D.N.Y. June 5, 2023) (quoting Tankleff v. Cnty. of Suffolk,
No. 09-CV-1207, 2016 WL 3162059, at *2 (E.D.N.Y. June 2, 2016)); see Gass v. Target, No. 22CV-1152, 2023 WL 2919414, at *2 (E.D.N.Y. Mar. 24, 2023). However, where, as here, “the
plaintiff die[s] 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 a substitute, as there would not be any estate to distribute.” Odessey F. v. Comm’r of
Soc. Sec., No. 22-CV-6517, 2024 WL 1565309, at *2 (W.D.N.Y. Apr. 11, 2024) (quoting HerreraCastro v. Trabajamos Community Head Start, Inc., No. 15-CV-9286, 2017 WL 549584, at *1
(S.D.N.Y. Jan. 30, 2017)); Walsh v. Comm’r of Soc. Sec., No. 17-CV-5465, 2022 WL 4079588, at
*4 (E.D.N.Y. Sept. 6, 2022) (same); see Roe v. City of New York, No. 00-CV-9062, 2003 WL
22715832, at *2 (S.D.N.Y. Nov. 19, 2003) (finding decedent’s father a proper party where son died
intestate, no court appointed an administrator and his property consisted only of personal
belongings).
Defendants argue that Carol Nyack does not satisfy any of the above criteria because “no
estate was distributed, there was no will, and the Surrogate’s Court proceedings demonstrate that
the estate does need to go through probate.” Def. Opp. at 2. Having established that Sheldon died
intestate with no spouse and no children, Sheldon’s parents are the distributees of his estate under
New York’s intestacy distribution laws. See N.Y. Est. Powers and Trusts § 4-1.1(a)(4) (where a
person “is survived by” “[o]ne or both parents, and no spouse and no issue,” a decedent’s property
is distributed “to the surviving parent or parents”). Since Sheldon Nyack died without any assets
and has no outstanding debts, there is no requirement that his estate be probated. The fact that
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Carol Nyack has applied for limited letters of administration does not prove otherwise. See
Odessey F., 2024 WL 1565309, at *2 (granting motion to substitute decedent’s son as successor
even though decedent’s mother was appointed voluntary administrator of small estate proceeding).
Thus, Carol Nyack’s motion falls within the third category for qualifying as a legal successor – a
beneficiary of an unprobated intestate estate which need not be probated. See Vickie W. v. Comm’r
of Soc. Sec., No. 23-CV-6322, 2023 WL 8014392, at *2 (W.D.N.Y. Nov. 20, 2023) (granting
motion to substitute spouse where plaintiff died intestate, did not have an estate that was probated
or any assets to be distributed upon her death); Walsh, 2022 WL 4079588, at *4 (granting motion to
substitute son where father died intestate and left no assets); U.S. Bank Nat’l Ass’n v. Sager, 630 F.
Supp. 3d 417, 422 (E.D.N.Y. 2022) (granting motion to substitute surviving children of decedent as
distributees of estate, where no administrator was appointed); Coon v. Bell, No. 16-CV-291, 2018
WL 10602302, at *1 (N.D.N.Y. June 14, 2018) (granting motion to substitute wife for deceased
plaintiff where plaintiff died intestate, there will be no estate established and wife has not been
formally appointed administratrix of her husband’s estate); Herrera-Castro, 2017 WL 549584, at
*1 (granting motion to substitute sister where decedent died destitute and no executor or
administrator had been appointed); Tankleff, 2016 WL 3162059, at *2 (granting motion to
substitute decedent’s only distributees where defendant died without a will and no estate was
instituted).
“Although a state court determination can be helpful in identifying a decedent’s successor
or representative, no such designation is required before a federal court can determine the proper
party for substitution.” Sager, 630 F. Supp. 3d at 420. Like in Sager, here, “waiting for a probate
proceeding . . . would constitute an unnecessary waste of time and run counter to the purpose of
Rule 25, which was to simplify and expedite the process of administering federal cases after the
death of a party.” Id. at 422. “[T]he Second Circuit has endorsed a flexible approach to
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interpreting Rule 25” for this exact scenario “because there can be time delays between the date of
a party’s death and the probate court being in a position to appoint a representative under the law of
the domicile of the deceased.” Id. at 421 (citation omitted). Because the parties have been waiting
since October 2022 for the Surrogate’s Court to address Carol Nyack’s petition for letters of limited
administration, continuing to delay the resolution of this case would run counter to the principles
underlying Rule 25. 2 Accordingly, the Court finds that Carol Nyack is a proper party who may be
substituted.
Conclusion

For the foregoing reasons, the Court grants Carol Nyack’s motion for substitution.
Accordingly, the Complaint is deemed amended to substitute Carol Nyack as plaintiff, as
successor to Sheldon Nyack. If Carol Nyack receives letters of limited administration, he shall
move to amend the complaint to reflect that he is the representative of the estate of Sheldon
Nyack.
SO ORDERED
Dated: Brooklyn, New York
June 3, 2024
s/ James R. Cho
James R. Cho
United States Magistrate Judge

2

The Court takes no position on defendants’ statement that “in order to accept the settlement,
execute the settlement paperwork and receive the [settlement] funds, Carol Nyack will have to
obtain a limited letter of administration from Surrogate’s Court.” Def. Opp. at 2; see N.Y. Surr. Ct.
Proc. Act § 702(1) (“Letters may be granted limiting and restricting the powers and rights of the
holder thereof . . . . [t]o the enforcement or prosecution of a cause of action in favor of the
decedent or his fiduciary under general or special provisions of law, . . . and restraining the
fiduciary from compromise of the action or the enforcement of a judgment recovered therein until
the further order of the court.”). Having now been substituted as the real party in interest, plaintiff
Carol Nyack, as legal successor to Sheldon Nyack, has the authority to discontinue Sheldon
Nyack’s claims. See Cortland St. Recovery Corp. v. Hellas Telecomm., S.à.r.l., 790 F.3d 411, 421
(2d Cir. 2015) (“If a party successfully moves for ratification, joinder or substitution, the action
proceeds as if it had been originally commenced by the real party in interest.”).
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