United States District Court, Southern District of New York
June 4, 2003
RUSSELL D. PALMER, PLAINTIFF,
STEWART, POLICE OFFICER, DEFENDANT.
The opinion of the court was delivered by: Gabriel W. Gorenstein, Magistrate Judge
OPINION AND ORDER
Plaintiff filed the amended complaint in this case pro se on July 15, 2002. The amended complaint was brought pursuant to 42 U.S.C. § 1983 and named "Stewart (P.O.)" as defendant. It alleges that the defendant participated in the false arrest of plaintiff on March 26, 1999.
On January 13, 2003, this Court ordered the Corporation Counsel for New York City to provide the business address of Officer "Stewart" so that the United States Marshal could effectuate service. By letter dated March 20, 2003, Assistant Corporation Counsel John A. Compton informed the Court that the defendant had been identified as Detective Walwyn Stuart and that Detective Stuart resigned from the police force in August 2000. Thereafter, by letter dated April 28, 2003, Mr. Compton notified the Court that Detective Stuart died on September 11, 2001 in the terrorist attack on the World Trade Center and attached with his letter a Suggestion of Death pursuant to Rule 25 of the Federal Rules of Civil Procedure. As provided by Fed.R.Civ.P. 25(a)(1), the Suggestion of Death "request[ed] that any motion for substitution" be made within 90 days of the notice date of April 28, 2003.
Palmer has now filed a motion for substitution dated May 24, 2003. Instead of naming a representative of Detective Stuart's Estate, however, the motion seeks to substitute the assigned Assistant Corporation Counsel on the ground that the "Corporation Counsel is liable for [Stuart's] actions." The plaintiff's motion is denied because the proper party to be substituted in this situation is the legal representative of the Estate of Detective Stuart: either an executor or an administrator. See, e.g., Young v. Patrice, 832 F. Supp. 721, 725 (S.D.N.Y. 1993).*fn1
Plaintiff's error is perhaps understandable as the Suggestion of Death did not provide a name for the executor or administrator of the Estate. Nor must a Suggestion of Death contain such information (the statement to the contrary in Young notwithstanding). See Unicorn Tales, Inc. v. Banerjee, 138 F.3d 467, 470 (2d Cir. 1998). Nonetheless, the Court has an obligation to a pro se plaintiff to assist in the identification of defendants and in the service of process. See Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997). This obligation requires the Court to make efforts to assist Palmer in identifying a representative of Detective Stuart's Estate — assuming such a representative exists.
Accordingly, the Corporation Counsel is ORDERED to investigate the status of Detective Stuart's Estate so that plaintiff may properly move to substitute a representative of the Estate pursuant to Fed.R.Civ.P. 25(a)(1). While the Suggestion of Death states that "no executor or administrator has been appointed on defendant Stuart's behalf," the statement is made "[u]pon information and belief" and is further hedged by the words "to date." The Corporation Counsel is directed to investigate this matter or to cause the New York City Police Department to do so. An affidavit shall be filed on or before July 10, 2003 stating the name of a representative of the Estate and the address where service on that representative may be made. If no such representative is named, the affidavit shall set forth in detail the efforts made to determine the representative, why there is no such representative named, and any information regarding when and if such a representative will be named in the future.
The Court advises plaintiff that should the Corporation Counsel provide a name and address of a representative of the Estate, the plaintiff must promptly move under Fed.R.Civ.P. 25(a)(1) to substitute that representative. A copy of the motion for substitution must be served personally on the representative as provided in Rule 4 of the Federal Rules of Civil Procedure. Accordingly, after preparing the motion, the plaintiff must fill out the appropriate forms to request the United States Marshal Service to effectuate personal service of the motion on that representative, see Rule 25(a)(1) — unless the representative indicates that service may be made by other means.
The Pro Se Office at the United States Courthouse, 500 Pearl Street, Room 230, New York, New York ((212) 805-0175) may be of assistance in connection with court procedures.