Yates v. N.Y. State Dep. Corr Ser et al
Filing
70
DECISION AND ORDER: It is hereby ORDERED that Michael Yates' renewed motion for substitution (Dkt. No. 67 ) is DENIED without prejudice to renew within ninety days of the date of the within Order; and it is further ORDERED that the Clerk of the Court shall serve a copy of this Decision and Order on Defendant and Michael Yates in accordance with the Local Rules. Signed by Magistrate Judge Miroslav Lovric on January 17, 2020. (Copy served via regular and certified mail, parcel no. 7014 1200 0001 3023 4822 on Michael Yates at 303 West 111th Street, Suite 1B, New York, NY 10026-4029)(rep) Modified on 1/17/2020 to note Yates' address (rep).
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
PHILLIP G. YATES,
Plaintiff,
9:17-CV-1227
(LEK/ML)
v.
DOREEN SMITH,
Defendant.
APPEARANCES:
MICHAEL YATES,
seeking substitution on behalf
of PHILLIP G. YATES,
deceased Plaintiff, pro se
HON. LETITIA JAMES
Attorney General of the State of New York
Counsel for the Defendant
The Capitol
Albany, NY 12224
HELENA LYNCH, Esq.
Assistant Attorney General
MIROSLAV LOVRIC
United States Magistrate Judge
DECISION AND ORDER
I.
INTRODUCTION AND PROCEDURAL HISTORY
On August 24, 2017, pro se plaintiff Phillip G. Yates ("Plaintiff") commenced this
action pursuant to 42 U.S.C. § 1983 seeking damages for violations of his constitutional
rights. Dkt. No. 1. On April 14, 2019, pursuant to Rule 25 of the Federal Rules of Civil
Procedure ("Fed. R. Civ. P."), Defendant filed a Suggestion of Death stating that Plaintiff died
on March 30, 2019. Dkt. No. 57. On July 30, 2019, Defendant filed a motion to dismiss the
action pursuant to Rule 25(a)(1). Dkt. No. 61. In a Decision and Order f iled on August 14,
2019 (the "August Order"), the Court denied Defendant's motion to dismiss, without
prejudice. Dkt. No. 62. Defendant was directed to serve Plaintiff’s successors or
representatives with the Suggestion of Death (Dkt. No. 57) or state why Defendant could not
have identified Plaintiff’s successors or representatives by the date Defendant filed the
Suggestion of Death. Id.
On August 22, 2019, Plaintiff's brother, Michael E. Yates, filed a motion to be
substituted as plaintiff in place of the deceased. Dkt. No. 63. Defendant opposed the
motion. Dkt. No. 64. In a Decision and Order filed on September 19, 2019 (the "September
Order"), the Court denied the motion, without prejudice to renew concluding, "Mr. Yates has
not demonstrated that he is either the successor of the deceased Plaintiff or the
representative of his estate." Dkt. No. 66 at 3. The Court provided Mr. Yates with an
opportunity to provide evidence that Plaintiff's estate has been distributed and he is the
distributee of that estate or that he has been designated under New York law as the legal
representative of Plaintiff's estate. See id. at 3-4. The Court also directed Mr. Yates to
provide "evidence that he is the primary distributee of his brother's estate and does not
represent the interest of any beneficiaries or creditors whom the outcome of this lawsuit
might impact." Id. at 4. The Court noted, "[a]bsent such a showing, Mr. Yates must obtain
counsel in order to represent the interests of the estate." Id.
Presently before the Court is Michael Yates' renewed motion for substitution, filed pro
se. Dkt. No. 67. Defendant has opposed the motion. Dkt. No. 68.
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II.
DISCUSSION
The law related to Rule 25(a)(1) and the substitution of the parties in a civil action was
discussed at length in the September Order and will not be restated herein. See Dkt. No. 66
at 2-3.
With the renewed motion, Mr. Yates has provided a copy of an order from the Probate
Court in Berkeley County, California, appointing him a personal representative of the
decedent's estate. Dkt. No. 67 at 7. Def endant objects to the substitution arguing that the
movant has not demonstrated that he is a successor or representative under New York law.
See generally Dkt. No. 68.
"It is well established that a proper party under Rule 25 is either a representative of
the decedent's estate or the successor of the deceased." Shapiro v. United States, No. 07
CIV. 161, 2008 WL 4302614, at *1 (S.D.N.Y. Sept. 17, 2008) (citations omitted). "[A]
representative of the deceased party [is] a person lawfully designated by state authority to
represent the deceased's estate." Lungu v. New Island Hosp./St. Joseph Hosp., No.
CV-11-0755, 2012 WL 2050205, at *5 (E.D.N.Y. June 4, 2012) (citation omitted). "Under
New York law, applicable here, a 'representative' is usually the appointed administrator or
executor of the decedent's estate." Allen ex rel. Allen v. Devine, No. 09-CV-668, 2011 WL
5117619, at *4 (E.D.N.Y. Oct. 25, 2011); Natale v. Country Ford Ltd., 287 F.R.D. 135, 138
(E.D.N.Y. 2012). ("Any person to whom letters of administration have been issued is known
as an 'administrator' under New York law.") (citation omitted); English v. Murphy-Lattanzi, No.
12-CV-419, 2015 WL 630248, at *3 (E.D.N.Y. Feb. 12, 2015) (a lawful representative of the
defendant's estate designated by the Massachusetts Probate Court, is a proper party for
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substitution under Rule 25(a)(1)).
With the Certificate of Appointment, Mr. Yates has proven that he is a proper party to
this action. See Wilcox v. Ozmint, No. CA 9:11-2073, 2012 W L 1416520, at *2 (D.S.C. Apr.
3, 2012) (finding that the decedent's personal representative is a proper party under Rule
25). Nevertheless, there is still an impediment to substitution.
Mr. Yates has not provided evidence that he is the primary distributee of his brother's
estate or evidence that he does not represent the interest of any beneficiaries or creditors
whom the outcome of this lawsuit might impact. As discussed in the September Order,
without such evidence, Mr. Yates may not proceed pro se.
Accordingly, the Court denies Mr. Yates' renewed motion, without prejudice. Mr.
Yates must provide evidence demonstrating that he may proceed pro se. In the alternative,
Mr. Yates may retain counsel to represent his brother's interests. Pridgen v. Andresen, 113
F.3d 391, 393 (2d Cir. 1997) (holding that an administratrix or executrix of an estate may not
proceed pro se when the estate has beneficiaries or creditors other than the litigant).
III.
CONCLUSION
WHEREFORE, it is hereby
ORDERED that Michael Yates' renewed motion for substitution (Dkt. No. 67) is
DENIED without prejudice to renew within ninety days of the date of the within Order;
and it is further
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ORDERED that the Clerk of the Court shall serve a copy of this Decision and Order on
Defendant and Michael Yates in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: January 17, 2020
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