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HARDY v. KASZYCKI & SONS CONTRS.

December 13, 1993

JOSEPH HARDY and HARVEY L. SHERROD, Plaintiff,
v.
KASZYCKI & SONS CONTRACTORS, INC., et al., Defendants.



The opinion of the court was delivered by: CHARLES E. STEWART, JR.

 STEWART, District Judge:

 Plaintiffs move, pursuant to Fed. R. Civ. P. 25(a)(1), to substitute Stella Senyshyn, as the representative of the Estate of John Senyshyn, as a defendant in place of John Senyshyn, who recently passed away. As set forth below, the motion is granted.

 BACKGROUND

 The underlying facts of this case have been set forth in several prior opinions. See, e.g., Diduck v. Kaszycki & Sons Contractors, Inc., 774 F. Supp. 802 (S.D.N.Y. 1991). Familiarity with these opinions is presumed, and only those facts necessary to put the present motion in context will be discussed.

 Plaintiff's sixth cause of action alleges that John Senyshyn, as a trustee of the House Wreckers' Union Local 95 ("Local 95"), breached his fiduciary duties in violation of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1104. Damages for such a breach are recoverable pursuant to 29 U.S.C. § 1109. In August of 1992, Mr. Senyshyn died intestate. As a result, plaintiffs seek to substitute the Estate of John Senyshyn (the "Estate") as a defendant. Plaintiffs attempted to serve Mr. Senyshyn's widow, Stella Senyshyn, who they contend is the representative of her husband's estate.

 Under the intestate distribution statute, Ms. Senyshyn is the sole -- or at least primary -- distributee of the Estate. N.Y. Est. Powers & Trusts § 4-1.1. Ms. Senyshyn, however, contends that no estate exists since her husband died without any assets. Senyshyn Aff. P 3. Currently there is no administrator of the Estate, nor does it appear that Ms. Senyshyn or anyone else intend to move for the appointment of one. Id.

 Plaintiffs respond to Ms. Senyshyn's contentions by pointing out that there are two Pension and Welfare Fund Fiduciary Responsibility Insurance policies that covered Mr. Senyshyn. Together, the policies insured his activities as a trustee for both the Local 95 Pension Fund and the Local 95 Insurance Trust Fund. Both policies contain identical provisions that provide: "The insurance . . . shall also apply to the estates, heirs and personal representatives of persons insured hereunder." Sloan Reply Aff. P 2, Ex. A. In the aggregate, the policies total eight million dollars. Id.

 Ms. Senyshyn also contends that service of the motion papers was defective. *fn1" Plaintiffs tried to serve Ms. Senyshyn twice. According to the process server's affidavit, the initial attempt occurred on January 9, 1993 when an individual in Ms. Senyshyn's apartment -- described as a caucasian female with brown hair of about 60 years of age, approximately 5'7" tall and weighing approximately 140 pounds -- was given the motion papers. Senyshyn Aff. Ex. 1. However, Ms. Senyshyn maintains that the recipient could not have been her since she is 5'3" tall, weighs 175 pounds and has snow white hair. Senyshyn Aff. P 2.

 Plaintiffs second attempt to serve Ms. Senyshyn occurred in July and August of 1993. Personal service was attempted on July 30th at 7:05 pm, on July 31st at 7:50 am and on August 2 at 10:05 am and at 4:50 pm. Sloan Reply Aff. Ex. C (the "Feldman Aff."). On August 3rd at 12:20 pm, the process server affixed the motion papers on Ms. Senyshyn's apartment door. Id. The same day the process server mailed the subject papers to Ms. Senyshyn's address. Id. Finally, the same day the process server's affidavit of service was filed with the clerk of this Court.

 DISCUSSION

 Fed. R. Civ. P. 25(a)(1) permits a court to dismiss an action against a deceased party if no motion is made to substitute within 90 days after the death is suggested on the record. *fn2" The suggestion of death is invalid unless it "identifies the representative or successor who may be substituted as a party." Gronowicz v. Leonard, 109 F.R.D. 624, 627 (S.D.N.Y. 1986) (citations omitted); see generally Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 1955. Since no one formally represents the Estate, to date any suggestion of death is invalid. Nonetheless, a motion to substitute can be made before a valid suggestion of death has been made. Dolgow v. Anderson, 45 F.R.D. 470, 471 (E.D.N.Y. 1968).

 Ms. Senyshyn preliminarily contends that her husband's estate has no assets, and thus does not exist. This contention is incorrect; Mr. Senyshyn's estate does have assets. Specifically, these assets include two Pension and Welfare Fund Fiduciary Responsibility Insurance Policies that provide coverage not only to the insured, but also to the "estates, heirs and personal representatives" of the insured. Sloan Reply Aff. P 2, Ex. A.

 Ms. Senyshyn also maintains that she is not the representative of the Estate. Although Ms. Senyshyn has not been formally appointed as the representative of the Estate, several courts interpreting Fed. R. Civ. P. 25(a) have held that such formality is not required in certain situations. See Gronowicz, 109 F.R.D. at 626; McSurely v. McClellan, 243 U.S. App. D.C. 270, 753 F.2d 88, 97 (D.C. Cir), cert. denied, 474 U.S. 1005, 88 L. Ed. 2d 457, 106 S. Ct. 525 (1985). These courts have stated that the "distributee of a ...


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