Miller v. Loibl et al

Filing 93

OPINION: Furthermore, refusal to permit the untimely motion would prevent the continuation of what may be an otherwise-meritorious action. See Staggersv. Otto Gerdau Co., 359 F.2d 292, 296 (2d Cir. 1966).The motion is granted. Plaintiff's deadline to move under Rule 25(a) is extended until March 8, 2013. SO ORDERED. (Signed by Judge Thomas P. Griesa on 2/22/2013) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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USDCSDNY
. DOCUMENT
ELECfRONICALLY FILED
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DATEFlLED: tv, AA. ~t3 .

GARY MILLER
Plaintiff,
11 Civ. 2182
v.

OPINION
BERN LOIBL, et al.,
Defendants.

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Plaintiff Gary Miller moves to extend his time to move to replace the
recently-deceased Bern Loibl with Loibl's estate as a defendant in this suit.
Miller could not move to substitute the defendant within the 90 days allowed
under Fed. R. Civ. P. 25(a) due to his apparently-mistaken belief that no
executor had yet been appointed to Loibl's estate (a mistake that, it seems,
defendant's counsel was aware of but made no effort to correct). He concedes
that it was out of mere carelessness that he failed to move for additional time
within the 90 days allowed. His deadline to move was January 7,2013 but he
did not move until January 18, 2013, eleven days later.
Nonetheless, Miller's neglect in discovering the executor's appointment is
excusable, and defendant can have suffered no conceivable prejudice due to
the delay. Furthermore, refusal to permit the untimely motion would prevent

the continuation of what may be an otherwise-meritorious action. See Staggers
v. Otto erdau Co., 359 F.2d 292, 296 (2d Cir. 1966).
G
The motion is granted. Plaintiff's deadline to move under Rule 25(a) is
extended until March 8, 2013.

So ordered.
Dated: New York, New York
February 22, 2013

Thomas P. Griesa
United States District Judge