Tankleff v. The County of Suffolk et al

Filing 178

MEMORANDUM & ORDER granting 172 Motion to Substitute Party; granting 176 Motion to Amend/Correct/Supplement; For the foregoing reasons, Plaintiff's motion to substitute Theresa and Brett McCready as Defendants in this action in their cap acity as the legal successors of Defendant K. James McCready (Docket Entry 172) is GRANTED and Plaintiff's motion to amend (Docket Entry 176) is similarly GRANTED. The Clerk of the Court is directed to amend the caption in this action so that De fendant K. James McCready is replaced with "Theresa and Brett McCready, as legal successors of K. James McCready." In addition, the parties are directed to meet, confer, and enter into a stipulation containing a briefing schedule for Defendants' proposed motion for summary judgment. Provided the briefing schedule is reasonable, the Court will so order the stipulation. So Ordered by Judge Joanna Seybert on 6/2/2016. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MARTIN TANKLEFF,
Plaintiff,
-against-

MEMORANDUM & ORDER
09-CV-1207(JS)(AYS)

THE COUNTY OF SUFFOLK,
K. JAMES MCCREADY, NORMAN REIN,
CHARLES KOSCIUK, ROBERT DOYLE,
JOHN MCELHONE, JOHN DOE POLICE
OFFICERS #1-10, RICHARD ROE,
Suffolk County Employees #1-10,
Defendants.
---------------------------------------X
SEYBERT, District Judge:

Pending before the Court is Plaintiff Martin Tankleff’s
(“Plaintiff”) unopposed motion seeking to substitute Theresa and
Brett McCready into this action as legal successors of Defendant
K. James McCready (Docket Entry 172) and Plaintiff’s unopposed
motion to amend his initial motion (Docket Entry 176).

For the

foregoing reasons, Plaintiff’s motions are both GRANTED.
BACKGROUND
Defendant K. James McCready passed away on December 28,
2015 and a suggestion of death was filed on the docket on January
14, 2016.
at 2.)

(Docket Entry 167; see Pl.’s Br., Docket Entry 172,

On March 30, 2016, Plaintiff moved to substitute Theresa

and Brett McCready into this action in their capacity as K. James
McCready’s legal successors pursuant to Federal Rule of Civil
Procedure 25(a).

(Pl.’s Br. at 1.)

The Court deferred ruling on

Plaintiff’s motion, but granted Plaintiff leave to depose Theresa
and Brett McCready.

(See April 8, 2016 Order, Docket Entry 175.)

The depositions of Theresa and Brett McCready revealed
the following facts.

K. James McCready died without a will on

December 28, 2015. (Theresa McCready Dep. (“Theresa Dep.”), Docket
Entry 176-1, 7:13–15; Brett McCready Dep. (“Brett Dep.”), Docket
Entry 176-2, 7:9–11.)

At the time of his death, K. James McCready

lived in Little River, South Carolina and was married to Theresa
McCready.

(Theresa Dep. 6:9–13; Brett Dep. 6:9–11, 6:15–24.)

Mr.

McCready’s only child is his son, Brett McCready. (Theresa Dep.
6:14-19; Brett Dep. 6:12–14.)

In the time since Mr. McCready

passed away, there has been no proceeding in probate court to
establish a formal estate for Mr. McCready, or to probate any
assets.

(Theresa Dep. 7:16–21; Brett Dep. 8:12–14.)

Moreover,

neither Theresa McCready nor Brett McCready intends to institute
such a proceeding, nor do they know of anyone else who intends to
institute such a proceeding in the future.
21; Brett Dep. 8:15–21.)

(Theresa Dep. 7:19–

Finally, neither Theresa McCready nor

Brett McCready knows of any other person who may have a claim to
Mr.

McCready’s

assets

McCready’s own claims.

that

is

superior

to

Theresa

or

Brett

(Theresa Dep. 7:22–25; Brett Dep. 10:6–

9.) Before his death, Mr. McCready transferred some of his assets-specifically, his truck and motorcycle--to his son Brett McCready
(Theresa Dep. 10:2–8; Brett Dep. 10:22–11:7.)
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Mr. McCready’s only

other asset was his house. (Theresa Dep. 14:7–17; Brett Dep. 8:22–
9:7.)

However, neither Theresa nor Brett McCready is aware of

what happened to the house after Mr. McCready’s death. (Theresa
Dep. 14:7–17; Brett Dep. 9:21–10:1.)
Based upon these facts, Plaintiff moves to substitute
Theresa and Brett McCready into this action in their capacity as
K. James McCready’s legal successor under Federal Rule of Civil
Procedure 25(a)(1).

(Pl’s Br., at 1.)
DISCUSSION

Federal Rule of Civil Procedure 25(a)(1) governs the
substitution of a party in the event of a litigant’s death.

The

rule provides:
Substitution if the Claim Is Not Extinguished.
If a party dies and the claim is not
extinguished, the court may order substitution
of
the
proper
party.
A
motion
for
substitution may be made by any party or by
the decedent’s successor or representative. If
the motion is not made within 90 days after
service of a statement noting the death, the
action by or against the decedent must be
dismissed.
FED. R. CIV. P. 25(a)(1). Rule 25(a)(1) allows a representative of
a decedent to take her place so that litigation in which the
decedent is a party can continue and conclude.

‘“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.’”

Allen ex rel. Allen v. Devine, No. 09-CV-0668,

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2011 WL 5117619, at *2 (E.D.N.Y. Oct. 25, 2011) (quoting Roe v.
City of N.Y., No. 00-CV-9062, 2003 WL 22715832, at *3 (S.D.N.Y.
Nov. 19, 2003)).
Cases interpreting Rule 25(a)(1) have established that
a person may qualify as a decedent’s legal successor under Rule
25(a)(1) if she is: “(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.”

In re Baycol Products Litig., 616 F.3d 778,

784-85 (8th Cir. 2010) (internal citations omitted).

Since Mr.

McCready died without a will and no formal estate was established
for him, this case falls into the third category.

The case of

Hardy v. Kaszycki & Sons Contractors, Inc., 842 F. Supp. 713, 716
(S.D.N.Y. 1993), which Plaintiff relies upon, is instructive.
Hardy,

the

court

substituted

a

litigant’s

widow

as

In
the

representative of her husband’s estate even though she was not
formally named as the estate’s representative.
the

fact

that

the

amended

Rule

25(a)(1)

Id.

“sought

Relying on
to

‘dispel

unwarranted rigidity and allow more flexibility in substitution,’”
the court reasoned that the widow was a proper party because her
husband died intestate and she was the primary distributee.

Id.

(quoting McSurely v. McClellan, 753 F.2d 88, 98 (D.C. Cir. 1985)).
The court further explained that “[a] contrary holding would result
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in needless delay, prolonging a case that is already ten years
old.”

Id. at 716, n.3.
Here, similar to the facts of Hardy, Mr. McCready died

without a will and no formal intestate proceedings have been
instituted to establish an estate.
that

a

probate

proceeding

will

Moreover, it seems unlikely
be

initiated

in

the

future.

Nevertheless, there is no dispute that Theresa and Brett McCready
are Mr. McCready’s only distributees under South Carolina law.
See S.C. CODE ANN. §§ 62-2-102, 62-2- 103.
McCready

are

proper

parties

who

may

Thus, Theresa and Brett
be

substituted

as

Mr.

McCready’s legal representatives under Rule 25(a)(1).
It is important to note, however, that Plaintiff does
not seek money damages from Theresa and Brett McCready personally,
nor did Plaintiff expect to recover money damages directly from
Mr. McCready.

(Pl.’s Br. at 4.)

Because Mr. McCready was a

Suffolk County Police Officer, Suffolk County was obligated to
hold Mr. McCready harmless for any tortious acts he committed “in
the

performance

employment.”

of

his

duties

and

N.Y. GEN. MUN. LAW § 50-j.

within

the

scope

of

his

For that reason, Suffolk

County has agreed to indemnify Theresa and Brett McCready in their
capacity as “legal successors” to Mr. McCready for any damages

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they are legally obligated to pay in this litigation.1

(May 2,

2016 Ltr., Docket Entry 177.)
CONCLUSION
For

the

foregoing

reasons,

Plaintiff’s

motion

to

substitute Theresa and Brett McCready as Defendants in this action
in their capacity as the legal successors of Defendant K. James
McCready (Docket Entry 172) is GRANTED and Plaintiff’s motion to
amend (Docket Entry 176) is similarly GRANTED.

The Clerk of the

Court is directed to amend the caption in this action so that
Defendant K. James McCready is replaced with “Theresa and Brett
McCready, as legal successors of K. James McCready.”
In addition, the parties are directed to meet, confer,
and enter into a stipulation containing a briefing schedule for
Defendants’ proposed motion for summary judgment.

Provided the

briefing schedule is reasonable, the Court will so order the
stipulation.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

June
2 , 2016
Central Islip, New York

Suffolk County clarified its position in a letter to the Court,
explaining that it “will indemnify [Theresa] McCready and Brett
McCready, as legal successors to James McCready, to the same
exten[t] that the County would be legally obligated to indemnify
James McCready, except as to punitive damages.” (May 2, 2016
Ltr., Docket Entry 177.)
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