UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
November 2, 2007
KENNETH FARREN, PLAINTIFF,
SHAW ENVIRONMENTAL, INC., DEFENDANT.
The opinion of the court was delivered by: William M. Skretny United States District Judge
DECISION and ORDER
It has come to the Court's attention, by the filing by defendant's counsel of a suggestion of death on the record, pursuant to Fed.R.Civ.P. 25(a), (Docket No. 19), that the plaintiff, Kenneth Farren, has died.
The deceased plaintiff had filed a complaint against his former employer, defendant Shaw Environmental, Inc., alleging sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e. Under New York law, which must be applied in these circumstances, Johnson v. Morgenthau , 160 F.3d 897, 898 (2d Cir. 1998), this federal civil rights action survives plaintiff's death and may be asserted by his "'personal representative' who has received letters from a court to administer the [decedent]'s estate." See Estate of Vaiselberg ex rel Vaiselberg v. Snow , No. 02 Civ. 6235, 2003 WL 1878248, at *1 (S.D.N.Y. 2003); Barrett v. United States , 689 F.2d 324, 331 (2d Cir.1982) ; N.Y. Estates, Powers and Trusts Law § § 1-2.13, 11-3.2(b) (McKinney 2001);*fn1 see also Estwick v. U.S.Air Shuttle , 950 F.Supp. 493 ("To the extent that plaintiff's pending civil rights action set forth cognizable claims that survived his death, such claims may be asserted, if at all, by plaintiff's estate.") (citations omitted).
Rule 25(a) of the Federal Rules of Civil Procedure provides that the representatives or successors to the deceased party may move for substitution of parties in order to pursue the claims that survive death. This motion must be made within 90 days after the death is "suggested upon the record" through service of a statement of fact of the death, which was filed in this case on September 24, 2007. (Docket No. 19.)
The Court notes that the deceased plaintiff's widow, Ann Farren, has contacted the Pro Se Office relating to the status of this action following her husband's death.
Accordingly, the Court directs the Clerk of the Court to notify the deceased plaintiff's relations of the pendency of this action by mailing a copy of this Order, together with a copy of the original complaint to Ann Farren, the deceased plaintiff's widow, at the deceased plaintiff's address as noted on the docket report. Mrs. Farren or the representatives of plaintiff's estate are directed to file a Motion for Substitution pursuant to Rule 25 of the Federal Rules of Civil Procedure, if any, by December 28, 2007.*fn2 In the event that Mrs.
Farren or plaintiff's representatives do not file their motion as directed, the complaint will be dismissed pursuant to Rule 25(a) without prejudice, and the Clerk of the Court shall close this case without further order.