Anderson Kane v. The City Of New York

S.D. New York

Anderson Kane v. The City Of New York

DecidedNovember 21, 2019

Docket1:16-cv-02583

StatusUnknown

This text of Anderson Kane v. The City Of New York (Anderson Kane v. The City Of New York) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Anderson Kane v. The City Of New York, (S.D.N.Y. 2019).

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Raickner PLLC Rob Rickner | rob@ricknerpllc.com USDC SDNY f DOCUMENT ELECTRONICALLY FILED October 16, 2019 { it i ee MEMO ENDORSED DOG are Via ECF Hon. Andrew L. Carter, Jr. United States District Judge Southern District of New York 40 Foley Square New York, NY 10007 Re: Anderson v. The City of New York, et al., 16-cv-02583 (RLC) (RWL) Dear Judge Carter, Unfortunately, Plaintiff Malcolm Anderson died on June 28, 2019. On July 30, 2019, we moved this Court to have his eldest sister, Tamikah Anderson Kane, substituted as the Plaintiff under Federal Rule of Civil Procedure 25(a) (“Rule 25(a)”), or in the alternative to stay the case. There was no opposition, and the motion is currently sub judice: Due to recent developments, however, we must now withdraw the motion to have Ms. Kane substituted as the Plaintiff. I recently learned from the Surrogate’s Court for Hudson County that a woman who states she is Mr. Anderson’s daughter wants to take over as Administrator of his Estate, and she states she is his sole heir. Ms. Kane is challenging this claim and there will be court-ordered DNA testing within the next 3 months to determine if Mr. Anderson is the father. Given this dispute, the Surrogate’s Court says that Ms. Kane is not permitted to take actions as the Administrator until this issue is resolved. The Surrogate’s Court has not issued an Order; I received this information from a clerk over the phone. Consequently, we ask that the deadline under Rule 25(a) be stayed (or enlarged by 4 months) while the issues before the Surrogate’s Court are resolved. Typically, under Rule 25(a), a motion to substitute counsel must be made within 90 days — and such a motion was timely made here. But as the Second Circuit has recognized, “the court shall have discretion to enlarge that period” and “discretionary extensions” should be liberally granted. Staggers v. Otto Gerdau Co., 359 F.2d 292, 296 (2d Cir. 1966); see also Kernisant v. City of New York, 225 F.R.D. 422, 428 (E.D.N.Y. 2005). In particular, an enlargement is warranted when, as here, there is “difficulty in appointing an administrator.” Kernisant, 225 F.R.D. at 428. (quoting Kasting v. Am. Family Mut. Ins. Co., 196 F.R.D. 595, 602 (D. Kan. 2000), which cites Yonofsky v. Wernick, 362 F.Supp. 1005, 1013 (S.D.N.Y.1973)). O ORDERED: Respectfully, / (Lae .ANDREW L. CARTER, JR. , /s/ UNITED staTES DisTRicT uDGE 4 > 2/-/7 ‘ \: Rob Rickner 4 Monin Extends OY) ot Oced W 1S Hansed 212-300-6506 | 233 BROADWAY, SUITE 2220 NEW YORK, NY 10279 | RICKNERPLLC.COM

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Raickner PLLC Rob Rickner | rob@ricknerpllc.com USDC SDNY f DOCUMENT ELECTRONICALLY FILED October 16, 2019 { it i ee MEMO ENDORSED DOG are Via ECF Hon. Andrew L. Carter, Jr. United States District Judge Southern District of New York 40 Foley Square New York, NY 10007 Re: Anderson v. The City of New York, et al., 16-cv-02583 (RLC) (RWL) Dear Judge Carter, Unfortunately, Plaintiff Malcolm Anderson died on June 28, 2019. On July 30, 2019, we moved this Court to have his eldest sister, Tamikah Anderson Kane, substituted as the Plaintiff under Federal Rule of Civil Procedure 25(a) (“Rule 25(a)”), or in the alternative to stay the case. There was no opposition, and the motion is currently sub judice: Due to recent developments, however, we must now withdraw the motion to have Ms. Kane substituted as the Plaintiff. I recently learned from the Surrogate’s Court for Hudson County that a woman who states she is Mr. Anderson’s daughter wants to take over as Administrator of his Estate, and she states she is his sole heir. Ms. Kane is challenging this claim and there will be court-ordered DNA testing within the next 3 months to determine if Mr. Anderson is the father. Given this dispute, the Surrogate’s Court says that Ms. Kane is not permitted to take actions as the Administrator until this issue is resolved. The Surrogate’s Court has not issued an Order; I received this information from a clerk over the phone. Consequently, we ask that the deadline under Rule 25(a) be stayed (or enlarged by 4 months) while the issues before the Surrogate’s Court are resolved. Typically, under Rule 25(a), a motion to substitute counsel must be made within 90 days — and such a motion was timely made here. But as the Second Circuit has recognized, “the court shall have discretion to enlarge that period” and “discretionary extensions” should be liberally granted. Staggers v. Otto Gerdau Co., 359 F.2d 292, 296 (2d Cir. 1966); see also Kernisant v. City of New York, 225 F.R.D. 422, 428 (E.D.N.Y. 2005). In particular, an enlargement is warranted when, as here, there is “difficulty in appointing an administrator.” Kernisant, 225 F.R.D. at 428. (quoting Kasting v. Am. Family Mut. Ins. Co., 196 F.R.D. 595, 602 (D. Kan. 2000), which cites Yonofsky v. Wernick, 362 F.Supp. 1005, 1013 (S.D.N.Y.1973)). O ORDERED: Respectfully, / (Lae .ANDREW L. CARTER, JR. , /s/ UNITED staTES DisTRicT uDGE 4 > 2/-/7 ‘ \: Rob Rickner 4 Monin Extends OY) ot Oced W 1S Hansed 212-300-6506 | 233 BROADWAY, SUITE 2220 NEW YORK, NY 10279 | RICKNERPLLC.COM

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