McNair v. Anthony J. Annucci, et al

Filing 46

OPINION & ORDER: In light of the foregoing, Defendants are directed to serve a copy of this Opinion and Order upon Plaintiffs next of kin, Lisa Stevens, at her last known address, and to file proof of service on the docket. Plaintiffs next of ki n, Lisa Stevens, shall have until May 10, 2019 (ninety days from service a copy of the death certificate), to move to be substituted as the representative of Plaintiff for the purpose of prosecuting Plaintiffs remaining claim(s). In the event t here is no timely substitution, the Complaint shall be deemed dismissed upon Defendants submitting an affidavit informing the Court that no substitution has been requested and upon submission of a proposed order of dismissal. (Signed by Judge Nelson Stephen Roman on 3/5/2020) (rro)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORI(

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LARRY McNAIR,
Plaintiff,
-against-

17-cv-9568 (NSR)
OPINION & ORDER

NEW YORI( STATE DEPARTMENT OF
CORRECTIONS AND COMMUNITY
SUPERVISION, et al.,
Defendants.

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NELSON S. ROMAN, United States District Judge:
Plaintiff Larry McNair ("Plaintiff' or "Munoz"), proceeding prose, commenced the
instant action asserting claims sounding in violation of 42 U.S.C. § 1983 as against multiple
defendants. By letter dated November 15, 2019, Defendants' counsel informs that Plaintiff
purportedly passed away in August 2019. His last know next of kin is Lisa Stevens, Plaintiffs
girlfriend, who he resided with prior to passing. By letter dated February 7, 2020, Defendants
submits a copy of Plaintiffs death certificate, which was also provided to his next of kin.
Rule 25( a)(l) provides, in pertinent part, that:
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.

Rule 25 establishes a ninety-day period for any party to make a motion to substitute a
party for the decedent. See Kaplan v. Lehrer, 173 F. App'x 934, 935 (2d Cir.2006). The ninetyday period can be extended where there is "an inability or a significant difficulty in identifying
the decedent's legal representative or successor. See Unicorn Tales, Inc. v. Bane1jee, 138 F.3d
467, 4 70 (2d Cir.1998). Plaintiffs only known next of kin, notified the Defendants of Plaintiffs

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passing in October 2019. Moreover, a copy of Plaintiffs death certificate was sent to Plaintiffs
last known residence where he resided with his next of kin.
In light of the foregoing, Defendants are directed to serve a copy of this Opinion and
Order upon Plaintiffs next of kin, Lisa Stevens, at her last known address, and to file proof of
service on the docket. Plaintiffs next of kin, Lisa Stevens, shall have until May 10, 2019 (ninety
days from service a copy of the death ce1iificate), to move to be substituted as the representative
of Plaintiff for the purpose of prosecuting Plaintiffs remaining claim(s). In the event there is no
timely substitution, the Complaint shall be deemed dismissed upon Defendants submitting an
affidavit informing the Comi that no substitution has been requested and upon submission of a
proposed order of dismissal.

SO ORDERED:

Dated: March 5, 2020
White Plains, New York

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