Heining v. Commissioner of Social Security

Filing 31

DECISION AND ORDER re 27 Motion to Substitute Party. Leonard Heining added as representative of Joseph D. Heining. Joseph D. Heining terminated as party. Signed by Hon. Jeremiah J. McCarthy on 11/8/2022. (JD)Clerk to Follow up

Case 1:20-cv-00881-JJM Document 31 Filed 11/08/22 Page 1 of 6

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
DECISION AND ORDER

JOSEPH D. H. 1
Plaintiffs,
v.

1:20-cv-881-JJM

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
______________________________________
Plaintiff commenced this action on July 13, 2020 pursuant to 42 U.S.C. §405(g)
to review the final determination of the Commissioner of Social Security that plaintiff was not
entitled to social security disability (“SSD”) benefits. Complaint [1]. 2 The parties consented to
my jurisdiction. [15]. Plaintiff died on August 2, 2020. Affidavit of Leonard Heining, sworn to
April 26, 2022 (the “Heining Affidavit.”) [27-1], ¶ 5. Plaintiff’s death being unknown to me, I
remanded this matter to the Commissioner on May 11, 2021 pursuant to the parties’ stipulation.
See Stipulation [16] and Order for Remand [17]. Before the court is plaintiff’s father’s
unopposed motion [27] to substitute himself as the plaintiff pursuant to Fed. R. Civ. P. (“Rule”)
25(a)(1). After plaintiff’s death, but before Mr. Heining made the motion to be substituted as a
party, plaintiff’s attorney filed a motion [24] to vacate the judgment entered as a result of my

In accordance with the guidance from the Committee on Court Administration and Case
Management of the Judicial Conference of the United States, which was adopted by the Western District
of New York on November 18, 2020 in order to better protect personal and medical information of nongovernmental parties, this Decision and Order will identify the plaintiff using only the first name and last
initial.

1

Bracketed references are to the CM/ECF docket entries. Page references to the administrative
record are to the Bates numbering. All other page references are to the CM/ECF pagination.

2

Case 1:20-cv-00881-JJM Document 31 Filed 11/08/22 Page 2 of 6

Order for Remand and my subsequent award of attorneys’ fees pursuant to the Equal Access to
Justice Act. See Judgment [18] and Decision and Order [22]. That motion remains pending.
DISCUSSION
I.

Mr. Heining’s Motion for Substitution
Plaintiff’s father, Leonard Heining, requests that he “be named as the substitution

of party in the federal court action associated with [plaintiff’s] Social Security appeal.” Heining
Affidavit [27-1], ¶ 14. In his affidavit, he states that he is plaintiff’s father (id., ¶ 4) and that
plaintiff died on August 2, 2020 (id., ¶ 5). At the time of his death, plaintiff had no spouse,
children, or siblings. Id., ¶¶ 4, 7, 8. Mr. Heining also confirmed that plaintiff died with “no
assets in his name requiring the administration of an estate”. Id., ¶¶ 10-11. The Commissioner
raises “no objection to the proposed substitution”. Defendant’s Response [30] at 1.
Rule 25(a)(1) provides:
“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.”
Fed.R.Civ.P. Rule 25(a)(1). Accordingly, courts considering substitution under this provision
must consider whether:
“(1) the claim of the deceased plaintiff survives his or her death;
(2) the individual seeking to be substituted is a ‘proper party;’ and
(3) the party requesting substitution moves ‘within 90 days after
service of a statement noting the death.’”
Scialdone v. Berryhill, 2017 WL 2835252, *1 (W.D.N.Y. 2017). I address each of these
requirements below.

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A.

Plaintiff’s Claim Survived His Death
“The Social Security Act expressly provides for Plaintiff’s Social Security

benefits to be paid to his survivors in the event he dies before collecting his underpayments. . . .
Plaintiff’s claim, therefore, survives his death.” Perlow v. Commissioner of Social Security,
2010 WL 4699871, *1 (E.D.N.Y. 2010); see also Scialdone, supra; 42 U.S.C. § 404(d). The first
element is therefore satisfied.
B.

Plaintiff’s Father is a “Proper Party”
A “proper party” “is either (1) a successor of the deceased party – a distributee of

an estate if the estate of the deceased has been distributed at the time the motion for substitution
has been made, or (2) a representative of the deceased party – a person lawfully designated by
state authority to represent the deceased’s estate.” Herrera-Castro v. Trabajamos Community
Head Start, Inc., 2017 WL 549584, *1 (S.D.N.Y. 2017); see also Bruyere v. Commissioner of
Social Security, 2020 WL 1904494, *1 (W.D.N.Y. 2020). New York law determines
“[w]hether a person is a proper ‘successor or representative’ of the decedent”. Garcia v. City of
New York, 2009 WL 261365, *1 (E.D.N.Y. 2009); see also Bruyere, supra.
New York’s Estates, Powers, and Trusts Law defines a “personal representative”
as “a person who has received letters to administer the estate of a decedent”. N.Y. E.P.T.L. § 12.13. “However, where the plaintiff died destitute, a party who is seeking substitution as a
successor and who is not also a representative of the plaintiff’s estate need not show that the
estate has been distributed before serving as a substitute, as there would not be any estate to
distribute.” Herrera-Castro, supra (internal quotations omitted). I therefore consider whether
plaintiff’s father qualifies under the second possibility: a “successor”, that is, a “distributee” of
plaintiff’s estate. Distributees of a person’s estate are determined by N.Y. E.P.T.L. § 4-1.1.
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Where a person “is survived by” “[o]ne or both parents, and no spouse and no issue”, a
decedent’s property is distributed “to the surviving parent or parents”. N.Y. E.P.T.L. § 41.1(a)(4).
Here, plaintiff’s father confirmed that plaintiff had no spouse and no children, but
that he and plaintiff’s mother are alive. Accordingly, Mr. Heining is plaintiff’s successor, and
qualifies as a “proper party” under Rule 25(a)(1).
C.

Timeliness
Finally, Mr. Heining’s motion is timely. The court first received notice of

plaintiff’s death on April 13, 2022, when plaintiff filed its motion to vacate [24]. See Text Order
[25] (“given that this motion and a copy of the plaintiff’s death certificate have now been served
upon the Commissioner, either of which may, or may not, operate as service of a statement
noting the plaintiff’s death pursuant to Rule 25(a)(1), the court draws the parties’ attention to the
deadline for filing a motion for substitution”). Mr. Heining filed this motion on April 29, 2022:
only 16 days later and well within the 90 days provided by Rule 25(a)(1). Accordingly, I find
that the motion is timely.
II.

The Motion to Vacate
After plaintiff’s death, but before Mr. Heining made the motion to be substituted

as a party, plaintiff’s attorney filed a motion [24] to vacate the judgment entered as a result of my
Order for Remand and my subsequent award of attorneys’ fees pursuant to the Equal Access to
Justice Act. See Judgment [18] and Decision and Order [22]. I agree with defendant’s attorney
that at the point in time when this motion was filed – i.e. after plaintiff’s death, but before a
proper party had been substituted – plaintiff’s attorney had no authority to act in this matter. See
Fariss v. Lynchburg Foundry, 769 F.2d 958, 962 (4th Cir. 1985) (“[t]he attorney’s agency to act
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ceases with the death of his client . . . and he has no power to continue or terminate an action on
his own initiative”).
I find unpersuasive the cases cited by plaintiff’s attorney to illustrate that “the
courts allow motions and other filings to be submitted by counsel in cases where the plaintiff is
deceased and no substituted party has been appointed”. Reply to Defendant’s Response and in
Further Support of Motions to Substitute Party and Vacate Judgment [29] at 1. In Grass Valley
Terrace v. United States, 69 Fed. Cl. 506 (2006), the court noted that the first mention of
plaintiff’s death was buried on page 447 of a 474-page appendix submitted with a reply brief
filed in response to defendants’ motion for summary judgment. The court did not discuss
whether that filing was properly made. Its discussion focused on the motion for substitution then
before the court.
Plaintiff’s attorney points out that in Christner v. Secretary of Health and Human
Services, 145 Fed. Cl. 633 (2010), the court ruled on a motion filed by the deceased plaintiff’s
attorney to review a Special Master’s decision dismissing the case. The dismissal occurred
because no one moved to substitute a proper party following plaintiff’s death by the date ordered
by the Special Master. Further, the motion submitted to the court included an affidavit from the
administrator of the deceased plaintiff’s estate stating that she had authorized deceased plaintiff’s
attorney to represent the estate. Finally, in Farzam v. United States, 135 Fed. Cl. 815 (2018), the
Motion to Modify Order 3 made by plaintiff’s attorney referred to an Order directing the deceased
plaintiff’s attorney to file a motion to substitute a proper party on or before a certain date.
Instead of filing such a motion, the deceased plaintiff’s attorney filed a motion to withdraw.
With no motion for substitution before the court, it dismissed the case.
Plaintiff mistakenly refers to this as a “Motion to Modify Offer”. See Reply to Defendant’s
Response [29] at 2.

3

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None of these cases convince me that the motion to vacate [24] is properly before
me. At the time the motion to vacate [24] was filed, the deceased plaintiff’s attorney had no
authority to make any motion on the deceased plaintiff’s behalf. Farris, supra. That motion is a
nullity. I therefore dismiss the motion to vacate [24] without prejudice to renewal, as described
below.
CONCLUSION
Mr. Heining satisfies each element required for substitution of a party pursuant
to Rule 25(a)(1). I therefore grant his motion, substitute him as a party due to plaintiff’s death,
and instruct the Clerk of the court to amend the caption appropriately. Plaintiff’s attorney is
instructed to serve a copy of this Decision and Order upon Mr. Heining on or before December
8, 2022, with proof of service to be filed on or before that date. The motion [24] to vacate will be
administratively terminated, and Mr. Heining may re-file the motion to vacate on or before
January 9, 2023.
SO ORDERED.
Dated: November 8, 2022

/s/
JEREMIAH J. MCCARTHY
United States Magistrate Judge

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