McNair v. Anthony J. Annucci, et al

Filing 49

ORDER OF DISMISSAL: NOW, THEREFORE, the Court orders that the Complaint in this action be dismissed without prejudice and deems this action closed. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 9/28/2020) (ama)

Case 7:17-cv-09568-NSR Document 48-1 Filed 09/21/20 Page 2 of 3

Whereas on March 5, 2020, the Court issued an Opinion & Order in which it noted Fed. R.
Civ. P. 25(a)(1)’s requirement that 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.” Id. No. 46.
The Court further noted that plaintiff’s only known next of kin, Lisa Stevens, in October 2019, had
informed the defendants of plaintiff’s passing in August 2019, and that defendants had sent a copy
of plaintiff’s Certificate of Death to plaintiff’s last known residence where he resided with Ms.
Stevens. Id.
Further, in its Opinion & Order, the Court directed defendants to serve a copy of the
Opinion & Order upon Ms. Stevens at her last known address, and to “file proof of service on the
docket.” Id. The Court further directed that Ms. Stevens “shall” have until May 10, 2020, “(ninety
days from service of a copy of the death certificate), to move to be substituted as the representative
of Plaintiff for the purpose of prosecuting Plaintiff’s remaining claim(s).” Id. The Court concluded
by stating that, in the “event there 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.” Id.
Whereas on March 6, 2020, OAG served a copy of the March 5, 2020 Opinion & Order
on Ms. Stevens by first class mail and filed proof of service with the Court. See Docket No. 47.
Whereas to date, over six months after service on Ms. Stevens of the Opinion & Order,
OAG has not received a request for substitution from her and no such request appears to have
been filed with the Court.

Case 7:17-cv-09568-NSR Document 48-1 Filed 09/21/20 Page 3 of 3

NOW, THEREFORE, the Court orders that the Complaint in this action be dismissed
without prejudice and deems this action closed.
SO ORDERED.

Dated:

September 28
___________________, 2020
White Plains, New York

____________________________________
NELSON S. ROMÁN
United States District Judge