Curet v. United States of America
ORDER granting 33 Motion to Dismiss; denying 35 Motion to Substitute Party. Defendant's Motion to Dismiss for failure to timely substitute a party is granted, and Plaintiff's Cross-Motion to Substitute a Party is denied. This matter is dismissed with prejudice, and the Clerk of Court is directed to close the case. See attached Order. Ordered by Judge Denis R. Hurley on 11/29/2017. (Bochner, Francesca)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM AND ORDER
- against UNITED STATES OF AMERICA,
CANNON & ACOSTA LLP
Attorneys for Plaintiffs
1923 New York Avenue
Huntington Station, NY 11746
L. Michael Davicino, Esq.
Roger Acosta, Esq.
Gary Small, Esq.
Patrick W. Cannon, Esq.
UNITED STATES ATTORNEYS OFFICE
Attorneys for Defendants
610 Federal Plaza
Central Islip, NY 11722
Bridget M. Rhode, Esq.
HURLEY, Senior District Judge:
Plaintiff-Decedent, Haziz Curet (“Plaintiff”) commenced this action against the United
States (“Defendant”) asserting claims under the Federal Tort Claims Act (“FTCA”). The
Complaint alleges that Plaintiff was hit while riding his bicycle by a Post Office truck, and the
resulting personal injury was due to negligence of an employee of the United States Postal
Service acting within the scope of her employment. (Complaint at 1 (Apr. 30, 2014) (DE 1).)
Presently before the Court is: (1) Defendant’s motion to dismiss for failure to timely substitute a
party pursuant to Fed. R. Civ. P. 25(a); and (2) Plaintiff’s cross-motion for an extension of time
to substitute Plaintiff’s son—the administrator of Plaintiff’s estate—as the plaintiff in this
litigation. For the reasons set forth below, Defendant’s motion is granted and Plaintiff’s motion
On August 13, 2013, the Complaint alleges that an employee of the United States Post
Office was operating a vehicle “that was traveling over and along the public thoroughfare” and
came into contact with the Plaintiff. (Complaint at 3 (DE 1).)
On April 30, 2014, Plaintiff filed his complaint against the United States, claiming that he
was struck by a Post Office vehicle and that he was entitled to a sum sufficient to “adequately
compensate plaintiff; together with the costs and disbursements of this action and for any and
such other relief as the Court may deem just and proper[.]” (Id. at 5.)
On June 7, 2014, Defendant the United States filed its Answer. (DE 4.) Magistrate
Judge Locke held several status conferences in September and December, 2014, regarding the
discovery schedule. Judge Locke certified that discovery was complete by Order dated July 23,
2015. The parties then requested a settlement conference on July 27, 2015, which was set for
October 1, 2015.
On or about September 9, 2015, Plaintiff passed away for unrelated reasons. (Suggestion
of Death at 1 (DE 16).) On September 22, 2015, Plaintiff’s counsel requested a stay on the basis
that they had been informed by Plaintiff’s family that he had recently passed away. (Request for
Stay at 1 (DE 15).) That same day the United States filed a Suggestion of Death upon the record
as to Plaintiff. (Suggestion of Death at 1.) On September 28, 2015, the Court granted the
request for a stay, adjourned the settlement conference, and directed Plaintiff to file a status
report no later than January 8, 2016.
On January 5, 2016, Plaintiff’s counsel again moved for a 60-day stay, which the Court
granted. (Letter Motion at 1 (DE 17).) The Court granted such stay until March 22, 2016. On
March 22, 2016, Plaintiff’s wife wrote a letter to the Court explaining that her deceased
husband’s “lawyer of three years does not want to move forward with the case anymore” and
requesting “more time to find another lawyer.” (March 22, 2016 Letter from Martha Curet at 1
On June 14, 2016, Judge Locke scheduled a conference for June 30, 2016. On June 29,
2016, Plaintiff’s new attorney Patrick Cannon filed a Notice of Appearance. (Notice of
Appearance (DE 22).) On August 18, 2016, Christopher Curet, Decedent’s son, retained counsel
to petition the Surrogate Court to appoint him administrator of his father’s estate. (Cross-Motion
Ex. C (DE 33).)
On September 30, 2016 and December 12, 2016, Judge Locke held additional status
conferences. Also on December 12, 2016, the United States filed a letter to request a pre-motion
conference to seek dismissal pursuant to Federal Rule of Civil Procedure 25(a)(1) for Plaintiff’s
failure to timely substitute a proper party. (Dec. 12, 2016 Letter from James Knapp at 1 (DE
27).) On January 4, 2017, this Court held a pre-motion conference and set a briefing schedule
for the motion to dismiss.
On January 23, 2017, Plaintiff’s son was appointed administrator of Plaintiff’s estate.
(Mem. of Law in Support of Cross-Motion at 4.) On February 21, 2017, Plaintiff filed a
Certificate of Appointment of Administrator and a pre-motion conference letter for a motion to
substitute the administrator of the Plaintiff’s estate pursuant to Fed. R. Civ. P. 25(a). On March
15, 2017, Defendant filed this Motion to Dismiss and Plaintiff filed a Cross-Motion to Substitute
Under Fed. R. Civ. P. 25(a)(1), substitution of a party due to death for a claim that is not
extinguished may be done by court order. However, “i]f 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).
Despite the use of “must” in Rule 25(a)(1), Courts have discretion to extend this 90-day
period for good cause pursuant to Fed. R. Civ. P. 6(b). Courts may grant an extension “on
motion made after the time has expired if the party failed to act because of excusable neglect.”
Fed. R. Civ. P. 6(b); see also Zeidman v. Gen. Accident Ins. Co., 122 F.R.D. 160, 161 (S.D.N.Y.
1988) (explaining that Fed. R. Civ. P. 6(b) “works in conjunction with Rule 25(a)(1) to provide
the intended flexibility in enlarging the time for substitution.”) As the Seventh, Ninth, and Tenth
Circuit Court of Appeals have found, the “history of Rule 25(a) and Rule 6(b) makes it clear that
the 90-day time period was not intended to act as a bar to otherwise meritorious actions, and
extensions of the period may be liberally granted.” Zanowick v. Baxter Healthcare Corporation,
850 F.3d 1090, 1094 (9th Cir. 2017) (citing Cont’l Bank, N.A. v. Meyer, 10 F.3d 1293, 1297 (7th
Cir. 1993)); see also United States v. Miller Bros. Constr. Co., 505 F.2d 1031, 1035 (10th Cir.
1974) (stating that under Rule 25, a “discretionary extension should be liberally granted absent a
showing of bad faith on the part of the movant for substitution or undue prejudice to other parties
to the action.”).
The Supreme Court has previously laid out a four-part test for to determine “excusable
neglect.” Pioneer Inv. Servs. Co. v. Brunswick Associates Ltd. P’ship, 507 U.S. 380, 388 (1993).
In Pioneer, the Supreme Court explained that “Congress plainly contemplated that the courts
would be permitted, where appropriate, to accept late filings caused by inadvertence, mistake, or
carelessness, as well as by intervening circumstances beyond the party’s control.” Id. The
Supreme Court further stated that “[t]he ordinary meaning of ‘neglect’ is ‘to give little attention
or respect’ to a matter, or, closer to the post for our purposes, ‘to leave undone or unattended to
especially through carelessness.’” Id. (quoting Webster’s Ninth New Collegiate Dictionary
(1983) (alterations omitted) (emphasis in original)). The Supreme Court ultimately held that the
determination of “whether a party’s neglect of a deadline is excusable . . . is at bottom an
equitable one, taking account of all relevant circumstances surrounding the party’s omission
[including] . . . “ the danger of prejudice to the [other party],  the length of the delay and its
potential impact on judicial proceedings,  the reason for the delay, including whether it was
within the reasonable control of the movant, and  whether the movant acted in good faith.”
Pioneer, 507 U.S. at 395.
The Second Circuit has explained that “despite the flexibility of ‘excusable neglect’” and
the fact that three of the factors in the four-factor Pioneer test “usually weigh in favor of the
party seeking the extension, we and other circuits have focused on the third factor: ‘the reason
for the delay, including whether it was within the reasonable control of the movant.’” Sillivanch
v. Celebrity Cruises, Inc., 333 F.3d 355, 366 (2d Cir. 2003). In other words, even if three of the
factors suggest that the moving party should receive an extension, if the reason for the delay was
within the reasonable control of the movant an extension will not necessarily be granted.
The Second Circuit has “taken a hard line” on excusable neglect, finding that while
substantial rights may be forfeited if they are not asserted within the established time limits, “the
legal system would groan under the weight of a regimen of uncertainty in which time limitations
were not rigorously enforced[.]” Id. at 367–68. Moreover, where “‘the rule is entirely clear, we
continue to expect that a party claiming excusable neglect will in the ordinary course, lose under
the Pioneer test.’” Id. (quoting Canfield v. Van Atta Buick/GMC Truck, Inc., 127 F.3d 248, 250–
51 (2d Cir. 1997)).
Courts have found excusable neglect in the Rule 25 context to include “difficulty in
appointing an administrator . . . where there is a prompt application for such an appointment.”
Kernisant v. City of New York, 225 F.R.D. 422, 428 (E.D.N.Y. 2005). Courts have found that
excusable neglect does not include attorney inadvertence or an attorney’s heavy caseload. See,
e.g., Steward v. City of New York, No. 04-CV-1509, 2007 WL 2693667, at *6 (E.D.N.Y. Sept.
10, 2007). Courts in the Eastern District of New York have previously declined to find
excusable neglect where an administrator did not petition the Surrogate Court for more than six
months after plaintiff died, and for more than two weeks after the court issued an order setting
forth deadlines for substituting a party. Lungu v. New Island Hosp./St. Joseph Hosp,, No. 11CV-755, 2012 WL 3115930, at *2 (E.D.N.Y. 2012). In Lungu, the court found that the
administrator provided no explanation for such delay nor did he claim any difficulty in seeking
appointment of an administrator. Id. A court in the Southern District of New York has held that
the “argument for not finding excusable neglect is strengthened by the fact that plaintiff’s heirs
were partially at fault in the failure to move to timely substitute parties.” Zeidman, 122 F.R.D. at
162 (plaintiff’s heir was reluctant to take on the role of administrator of plaintiff’s estate until
learning she could personally profit, which greatly contributed to the delay).
Applying the four-part Pioneer test to the facts at hand, the Court finds that the delay by
Plaintiff’s counsel and the administrator of Plaintiff’s estate does not constitute excusable
neglect, and therefore the Motion to Dismiss is granted and the Cross-Motion to Substitute is
Under prong 1 of the Pioneer test, there is some danger of prejudice to Defendant from
the delay. Delay alone can be prejudicial “due to the unnecessary imposition of the burdens of
prolonging litigation.” Zeidman, 122 F.R.D. at 162. Here, the proceedings have been delayed
for over two years based on Plaintiff’s death and the attending back and forth regarding
substitution. Two years certainly seems sufficient to cause prejudice to Defendant.
Under prong 2 of the test, there has been an exceedingly long delay. This Court granted
several extensions for the time to substitute a party under Rule 25(a), over Defendant’s
opposition, the last of which expired on March 22, 2016. While Plaintiff’s wife submitted a
letter on March 22 requesting more time, Plaintiff’s counsel did not move to substitute until
almost a full year later, on March 15, 2017. Without extensions the original 90-day deadline
under Rule 25(a) would have expired in December 2015, which means that Plaintiff’s heirs took
almost fifteen additional months to substitute a party.
Plaintiff’s counsel offers no justification for such delay nor do they state that there was
any difficulty in appointing an administrator. Counsel merely offers that “Plaintiff Decedent in
the instant matter did not move earlier to substitute the Administrator of the Estate as the plaintiff
in the litigation because the Administrator was not appointed until January 23, 2017.” (Mem. of
Law in Support of Cross-Motion at 3.) Counsel makes no attempt to answer the obvious
responsive question of why no administrator appointed was until January 23, 2017. The letter
from Plaintiff-Decedent’s wife on March 22, 2016, stating that her deceased husband’s “lawyer
of three years does not want to move forward with the case anymore,” is neither offered for nor
is it sufficient for the Court to infer why there was a fifteen month delay in appointing an
Notably, Plaintiff-Decedent’s son did not hire a lawyer to petition Surrogate Court until
mid-2016; almost a year after the Notice of Death was filed on the docket and five months after
his mother sent the letter asking for more time to find a lawyer. Surely, it takes less than 11
months to find an estate lawyer. Moreover, even once an administrator was appointed,
Plaintiff’s counsel did not move to substitute for another nearly two months.
Under prong 3, as stated above, no acceptable reason has been provided for the delay.
This leaves the Court to surmise that the delay was caused by Plaintiff’s heirs’ failure to timely
hire counsel, petition the Surrogate Court, and file a motion for substitution. The delay was
unquestionably within the heirs’ control, given that once Plaintiff’s son hired new counsel to
petition the Surrogate Court he was appointed administrator within five months. While five
months is longer than the 90-day period provided for under Rule 25(a), it is certainly shorter than
the amount of time provided by this Court in extensions.
Under the final prong, the Court assumes that the Plaintiff’s heirs acted in good faith
despite the fact that there is little evidence supporting this conclusion in the record. However,
even concluding that Plaintiff’s heirs acted in good faith, the other three factors insurmountably
weigh against finding that the delay here was caused by excusable neglect. Eighteen months to
move to substitute a party without providing any reason or justification is inexcusable.
For the foregoing reasons, Defendant’s Motion to Dismiss is granted and Plaintiff’s
Cross-Motion to Substitute is denied. This matter is dismissed with prejudice, and the Clerk of
Court is directed to close the case.
Dated: Central Islip, New York
November 29, 2017
Denis R. Hurley
Unites States District Judge
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