Brock v. Avanzado

{| OCU ENT UNITED STATES DISTRICT COURT Houeceanmieains een! SOUTHERN DISTRICT OF NEW YORK. Wooe a, □□ VINCENT A. BROCK, [eann ts □□ O) | Y2a Plaintiff, : : ORDER V. : : 19 CV 5891 (VB) DR. AVANZATO and DR. ZAMILUS, : Defendants. : ee ee eee ee eee eee een een =X On September 23, 2020, the Court issued an Opinion and Order granting in part and denying in part defendants’ motion to dismiss. (Doc. #48). The Court ordered defendants Dr. Avanzato and Dr. Zamilus to file an answer to the complaint by October 6, 2020. (Id.). On October 6, 2020, defendants filed a suggestion of death noting that on or about April 9, 2020, Dr. Joseph Avanzato had died. (Doc. #51). In addition, defendant Dr. Zamilus filed an answer to the complaint, stating that because Dr. Avanzato had passed away, Dr. Avanzato was “terminat[ed] [] as a party subject to Fed. R. Civ. 25.” (Doc. #53 n.1). However, a Section 1983 claim survives the death of a defendant. See Barrett v. United States, 651 F. Supp. 604, 605-06 (S.D.N.Y. 1986). In addition, Fed. R. Civ. P. 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.” Accordingly, it is HEREBY ORDERED that by October 21, 2020, defendants shall file a letter on the ECF docket advising the Court of the process by which they will substitute the estate of Dr. Avanzato as a defendant in this case pursuant to Fed. R. Civ. P. 25(a)(1). Chambers will mail a copy this Order to plaintiff at the address on the docket. Dated: October 7, 2020 White Plains, NY . sO due Vincent L. Briccetti United States District Judge