United States District Court, W.D. New York
ZACHARY M. SCIALDONE, Plaintiff,
NANCY A. BERRYHILL,  ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
DECISION AND ORDER
FRANK P. GERACI, JR. Chief Judge.
27, 2016, Zachary M. Scialdone ("Plaintiff) brought this
action pursuant to the Social Security Act ("the
Act") seeking review of the final decision of the Acting
Commissioner of Social Security ("the
Commissioner") that denied his applications for
disability insurance benefits and Supplemental Security
Income under Titles II and XVI of the Act. ECF No. 1. The
Court has jurisdiction over this action under 42 U.S.C.
§§ 405(g), 1383(c)(3).
December 27, 2016, Plaintiff's counsel filed a
"Consent Motion to Substitute Party" pursuant to
Federal Rule of Civil Procedure 25(c). ECF No. 10. Federal
Rule of Civil Procedure 25(c) provides that:
If an interest is transferred, the action may be continued by
or against the original party unless the court, on motion,
orders the transferee to be substituted in the action or
joined with the original party. The motion must be served as
provided in Rule 25(a)(3).
Civ. P. 25(c).
motion at issue, however, does not demonstrate that any
interest has been transferred. The motion merely indicates
that Plaintiff's father, Gary Scialdone, informed
Plaintiffs counsel on July 7, 2016 that Plaintiff passed away
on June 24, 2016. ECF No. 10-1. It further states that
"Gary Scialdone thereafter agreed to be the substitution
of party and proceed with Plaintiff's case" and that
the Commissioner consented to this substitution on November
29, 2016. Id.
Court notes that Federal Rule of Civil Procedure 25(a)
specifically deals with a party's death. Federal Rule of
Civil Procedure 25(a)(1) provides that:
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
Civ. P. 25(a)(1). Thus, Federal Rule of Civil Procedure
25(a)(1) permits an individual to be substituted for a
deceased party to a civil action if: (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)
party requesting substitution moves "within 90 days
after service of a statement noting the death." As to
whether the claim survives, the Act "expressly provides
for Plaintiff's Social Security benefits to be paid to
his survivors in the event he dies before collecting his
underpayments." Perlow v. Comm'r of Soc.
Sec, No. 10-CV-1661 SLT, 2010 WL 4699871, at *1
(E.D.N.Y. Nov. 10, 2010) (citing 42 U.S.C. § 404(d)).
The SSA distributes that amount to certain individuals
according to a statutorily established priority. See
42 U.S.C. § 404(d).
timeliness, the party seeking substitution must move the
Court within 90 days of "service of a statement noting
the death" of the party for whom substitution is sought.
Fed.R.Civ.P. 25(a)(1). "Although service of the
statement typically begins the 90 day period, courts have
construed a motion for substitution to be a notice of death
when a party's death is first mentioned in the
substitution motion." Worrell v. Colvin, No.
1:12-CV-3386 ENV, 2013 WL 3364373, at *1 (E.D.N.Y. July 3,
2013) (citations omitted).
the "proper party" for substitution is either a
"representative of the deceased party's estate"
or a "successor of the deceased party."
Id. at *2 (citation omitted). The Court looks to New
York state law to define the terms "representative"
and "successor." Id. (citation omitted). A
"representative is a person who has received letters to
administer the estate of a decedent." N.Y. E.P.T.L.
§ 1-2.13. A "successor of the deceased party is a
distributee of the decedent's estate if the estate has
been distributed at the time the motion for substitution is
made." Garcia v. City of N.Y., No. CV 08-2152
RRM MDG, 2009 WL 261365, at *1 (E.D.N.Y.Feb. 4, 2009)
(quotation marks and citation omitted). Courts generally
reserve judgment as to whether the movant is a proper party
for substitution when he or she fails to establish that he or
she is the deceased party's "representative" or
a "successor." Worrell, 2013 WL 3364373,
reasons stated, the "Consent Motion to Substitute
Party" (ECF No. 10) lacks the requisite information for
the Court to determine whether Plaintiff is entitled to the
relief he seeks pursuant to Federal Rule of Civil Procedure
25(c). Accordingly, Plaintiffs counsel has until
July 14, 2017 ...