The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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TRICIA A. MORIATES,
Plaintiff,
ORDER
- against -
CV 17-4576 (GRB) (AKT)
NEW YORK STATE UNIFIED COURT SYSTEM,
THOMAS A. ADAMS as Administrative Judge,
Supreme Court of the State of New York-Mineola 10th
Judicial District, ROBERT A. BRUNO as Judge,
Supreme Court of the State of New York-Mineola 10th
Judicial District, DIANE TOSCANO as Courtroom
Clerk, Supreme Court of the State of New York-
Mineola 10th Judicial District, KATHRYN
DRISCOLL HOPKINS as Chief Clerk, Supreme
Court of the State of New York-Mineola 10th Judicial
District,
Defendants.
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A. KATHLEEN TOMLINSON, Magistrate Judge:
The Court conducted a Telephone Status Conference on October 6, 2020 and was advised
that progress was being made towards the appointment of an administrator of the Estate for
Judge Bruno. See DE 42. Once that process was completed, plaintiff’s counsel was directed to
take the necessary steps to have the estate substituted in this case. Id. at 2.
During the October 6, 2020 Conference, the Court also discussed with the parties its in
camera review of the Inspector General’s Report. Id. at 1. The redactions in the Report
suggested that the defendants were asserting a claim of privilege. Therefore, the Court inquired
whether the defendants were utilizing the internal investigation conducted as a defense in this
case because such a defense was not raised in the Answer. Id. Defense counsel needed to confer
with her client to see if the investigation would be asserted as a defense. If so, the Court advised
counsel it would likely require an unredacted Report be turned over to plaintiff. Id. Defendants
were then directed to file a letter by November 9, 2020 to notify the Court if they would seek to
amend the Answer. Id. Plaintiff was given until November 17, 2020 to advise if they would
consent or object to an amended answer. Id. In addition, the Court was advised that no experts
would be utilized in this case. The Court then set a final discovery deadline of February 1, 2021.
On November 9, 2020, defense counsel filed a letter to advise the Court that the New
York State Unified Court System (“UCS”) would permit her to provide plaintiff with an
unredacted copy of the Report so long as the parties enter into a confidentiality agreement. See
DE 45. Defense counsel also advised that she would “seek to amend the answer to interpose
other relevant affirmative defenses that were omitted” but she did not identify what these new
defenses would be. Id. Although the Court was informed at the October 6, 2020 conference that
no experts would be utilized, defense counsel retracted that statement in this letter by asking for
an expert discovery schedule because she intends to utilize an economist to opine on plaintiff’s
damages. Id. Plaintiff filed a letter on November 13, 2020 objecting to the defendants’ request
to file an amended answer and to the pre-requisite of a confidentiality agreement prior to
defendants turning over the unredacted Report. See DE 46. After reviewing the parties’ letters,
the Court directed the parties to submit a briefing schedule for defendants’ formal motion to
amend the Answer. See November 16, 2020 Electronic Order. The Court also advised the
parties that their disagreement as to the appropriateness of a confidentiality agreement for the
Report would be addressed after a decision is rendered on the motion to amend. Id. The parties
then submitted a briefing schedule which the Court “so ordered.” See DE 47. Defendants’
motion was to be served by December 23, 2020, plaintiff’s opposition by January 13, 2021, and
defendants’ reply, if any, by February 10, 2021. See November 19, 2020 Electronic Order.
After the briefing schedule was approved, numerous motions and other filings were made by the
parties which the Court will now address in turn.
On January 13, 2021, the plaintiff filed a motion to substitute the Estate of Robert A.
Bruno for Judge Bruno and to “render any orders the [C]ourt entered or proceedings the [C]ourt
held since November 1, 2019, the date of [Judge] Bruno’s death, but prior to substitution[,] null
and void.” See DE 48. Plaintiff’s counsel apparently conducted a Google search and found an
obituary that suggested Judge Bruno passed away on November 1, 2019. Id. at 2. The next day,
January 14, 2021, the plaintiff filed another motion, withdrawing the January 13, 2021 motion to
substitute pending the re-filing of the motion in accordance with the Court’s bundle rule. See
DE 49 at 1. The January 14,2021 motion reiterated the plaintiff’s request to deem any Orders
and proceedings conducted following Judge Bruno’s death null and void and also sought a stay
of proceedings. Id. Plaintiff also contends that defense counsel had no authority to act on Judge
Bruno’s behalf until a proper party is substituted. Id. at 1-2.
Defense counsel did not file a response to either the January 13 or January 14, 2021
filings by plaintiff. Instead, defendants filed a letter on February 28, 2021 which requested an
extension of the deadline to file pre-motion conference requests to Judge Brown for purposes of
moving for summary judgment. See DE 50. Defendants cite “three pending motions” as the
grounds for such an extension. See DE 50 at 1 & n.1. At the time this letter was filed, only two
motions were pending: the plaintiff’s January 13 and January 14, 2021 motions. In addition to
those motions, which the defendants consolidate as a single motion, defendants also refer to their
motion for leave to amend the answer which was served on December 23, 2020 and another
motion served on February 18, 2021 which sought various forms of relief. Id. According to
defendants, the plaintiff’s motion to substitute should be denied as untimely and the plaintiff did
not oppose their motion to amend the Answer. Id. Regarding the February 18, 2021 motion,
defendants’ letter indicates that motion sought denial of plaintiff’s January 13 and 14, 2021
motions and leave to file their motion to amend as unopposed. Id. The Court notes that neither
the motion to amend nor the February 18, 2021 motion were ever filed by defendants.
On March 8, 2021, the plaintiff filed an untimely opposition to the defendants’
February 28 letter motion. See DE 51. Plaintiff again contends that all Orders entered and
proceedings conducting following the death of Judge Bruno are null and void. Id. at 1. Plaintiff
raises anew her argument that proceedings should be stayed and that defense counsel has
impermissibly continued to act on Judge Bruno’s behalf following his death by conducting two
depositions. Id. at 1-2. Plaintiff also contends that defendants did not respond to her letter
motion at DE 49 and characterizes as disingenuous defendants’ argument that plaintiff’s motion
to substitute is untimely. Id. at 2.
On March 9, 2021, the defendants filed an impermissible reply to plaintiff’s opposition.
See DE 52. Despite defendants’ acknowledgment of the Court’s Individual Rules which prohibit
replies on letter motions, defendants filed this letter to “refute . . . serious misrepresentations to
the Court.” Id. at 1. Although the Court need not consider this filing, the Court notes that the
“misrepresentations” defendants address here pertain to the plaintiff’s discovery of Judge
Bruno’s date of death, the timeliness of the motion to substitute, and their opposition to DE 49
which is set forth in their unfiled February 18 motion. See id. at 1-2.
On March 17, 2021, the defendants filed another letter motion which seeks permission to
file “as unopposed a motion and a cross-motion” to which plaintiff “refuses” to respond. See
DE 53. It appears to the Court that the defendants are referring to their motion to amend the
Answer and the February 18 motion referred to above. Defendants also note that the plaintiff
served them with another motion to substitute on March 2, 2021. Id. at 1-2. According to
defendants, plaintiff has not responded to their motions nor agreed to participate in a briefing
schedule because of plaintiff’s claim that defense counsel has no authority to act on behalf of
Judge Bruno. Id. at 2. Plaintiff filed a response that same day which again requests a stay of
proceedings and a declaration that all proceedings and Orders entered since November 1, 2019
be null and void. See DE 54.
Although there are multiple issues raised by the excessive filings since January, there are
two which the Court must first address which have been reiterated by plaintiff’s counsel on four
different occasions: (1) whether defense counsel has the authority to represent Judge Bruno after
his death when an executor or administrator of the estate had not yet been appointed in the
Surrogate’s Court and (2) whether any Orders/proceedings in this case since November 1, 2019
should be rendered null and void. As an initial matter, the Court finds it unusual at best that it
was more than 14 months after Judge Bruno’s passing that plaintiff first brought these issues to
the Court’s attention – notwithstanding the fact that Judge Bruno’s death was first discussed with
the Court as early as December 2019 during a Settlement Conference, which was only one month
after his passing.
Notwithstanding these circumstances, plaintiff refers the Court to O’Rourke v. Drunken
Chicken in NY Corp. for the proposition that “[l]awyers are not considered parties to the action
and their authority to represent a party ends at the party’s death.” See DE 54. Although the
Court concedes this language is present in O’Rourke, plaintiff omits from his citation the very
next sentence of the decision which states: “For that reason, ‘a deceased’s attorney is not
authorized to file a motion for substitution under Rule 25 unless that attorney has been hired by
the administrator of the deceased’s estate.’” O’Rourke v. Drunken Chicken in NY Corp., No. 19
CV 3942, 2021 WL 1394176, at *2 (E.D.N.Y. Feb. 26, 2021) (quoting Steward v. City of New
York, No. 04-CV-1508, 2007 WL 2693667, at *5 n.3 (E.D.N.Y. Sept. 10, 2007)). As such, the
court in O’Rourke denied the motion of plaintiff’s counsel to substitute his deceased client’s
estate in the case, in part because counsel was not “a party” nor the deceased client’s
representative as set forth in Rule 25. Id. at *3. Moreover, the court in O’Rourke denied without
prejudice the application of the deceased plaintiff’s attorney for fees and costs because the court
was “unaware of, and counsel has not supplied, any authority permitting an attorney to file a
substantive motion once his representation of a client has ceased.” Id. at *4 & n.4.
Plaintiff’s counsel then refers the Court to CPLR § 1015 and various decisions by New
York state courts in support of his argument that Judge Bruno’s death divested this Court of
jurisdiction and that any Orders entered or proceedings conducted after his death are null and
void. See DE 49 (citing Matter of Einstoss, 26 N.Y.2d 181 (1970); Giroux v. Dunlop Tire Corp.,
791 N.Y.S.2d 769 (4th Dep’t 2005); Hicks v. Jeffrey, 757 N.Y.S.2d 474 (2d Dep’t 2003)), DE 51
(same) and DE 54 at 1-2 (same). Plaintiff does not cite nor has the Court been able to find a
decision by a federal court in New York which has followed the expansive approach taken by
these cases. At most, this Court located a decision by a federal judge sitting in the Southern
District of New York which held that a judgment entered absent the substitution of a decedent’s
representative is generally deemed void pursuant to New York law. See Gerber Trade Fin. Inc.
v. J.A.D.E. Fisheries, Inc., No. 03 Civ. 1950, 2004 WL 626183, at *4 (S.D.N.Y. Mar. 29, 2004).
Such a situation is not present here as judgment has not been entered.
Therefore, the Court declines to declare all actions taken in this case since November 1,
2019 null or void. The Court also notes that Judge Bruno is not the only defendant in this action
and the plaintiff’s claims against him are also asserted against other defendants. See Complaint
[DE 1] at ¶¶ 215-40. As such, the steps taken to move this case forward and the discovery which
has been completed to date would have proceeded regardless of Judge Bruno’s status as a party,
even if at a later date following the entry or denial of a substitution order. However, the Court is
concerned as to whether the administrator of Judge Bruno’s estate has appointed defense counsel
here to continue to represent Judge Bruno’s interests in this action because such an explicit
statement is absent from defendants’ filings. It also appears to the Court that the issue of
whether the estate will be substituted must be resolved before further action is taken in this case,
including the defendants’ motion to amend the Answer. Accordingly, the Court issues the
following rulings:
• Defendants’ counsel is directed to file a letter by October 13, 2021 which indicates
whether she has been retained by the administrator of Judge Bruno’s estate to continue to
represent his interests in this action.
• The plaintiff’s motion to substitute at DE 48 is deemed WITHDRAWN in accordance
with DE 49.
• The plaintiff’s motion at DE 49 for a stay and to declare all Orders and proceedings
dating back to November 1, 2019 null and void is GRANTED, in part, and DENIED, in
part. The request to stay proceedings is granted until a decision is rendered on the
plaintiff’s forthcoming motion to substitute. The parties are directed to confer and submit
to the Court a briefing schedule for plaintiff’s motion by October 13, 2021. The
remaining requests for relief in this motion are denied.
• The defendants’ request at DE 50 for an extension of time to commence summary
judgment motion practice is GRANTED, without date. A new deadline will be set after
the Court rules on the plaintiff’s forthcoming motion to substitute. To the extent that
defendants also request that an expert discovery schedule be implemented, defendants
will need to make a motion to reopen discovery and demonstrate good cause in light of
the fact that the final discovery deadline was February 1, 2021 and this motion was filed
on February 28, 2021. See DE 42. If defendants intend to pursue this course of action,
they will be permitted to file a motion for such relief after the issues pertaining to the
substitution of Judge Bruno’s estate are resolved.
• The defendants’ request at DE 53 to file their motion to amend the Answer and to file the
February 18, 2021 motion are denied at this time. The Court notes that the plaintiff did
not oppose defendants’ motion to amend in light of counsel’s belief that defendants did
not have the authority to make such a motion. However, at no point did plaintiff seek
relief from the jointly proposed, Court-Ordered briefing schedule for defendants’ motion
to amend. Therefore, the defendants will be permitted to file the motion to amend as
unopposed after the substitution issues are resolved. The issue pertaining to the
appropriateness of a confidentiality agreement for the Inspector General’s Report will be
addressed by the Court after it rules on the motion to amend.
SO ORDERED.
Dated: Central Islip, New York
September 28, 2021 /s/ A. Kathleen Tomlinson
A. KATHLEEN TOMLINSON
U.S. Magistrate Judge