Cabisca v. City of Rochester, New York et al, No. 6:2014cv06485 - Document 85 (W.D.N.Y. 2018)

Court Description: ORDER denying 71 Motion to Substitute Party; granting 75 Motion to Substitute Party. Signed by Hon. Jonathan W. Feldman on 12/18/18. (SR)-CLERK TO FOLLOW UP- Maryrose and Earl Wengert as co-executors to be substituted for defendant Nolan Wengert

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narily be filed within 90days of each other. Given the flexible approach adopted by the Second Circuit in Unicorn Tales, supra, I am hesitant to hold that plaintiff’s motion to substitute the representative of the Wengert Estate was ineffective. In his motion to substitute, plaintiff’s counsel noted that it was only on May 19, 2017 that the Monroe County Surrogate issued an Order saying Mary Rose and Earl Wengert would be issued letters testamentary. See Docket 56-1. Moreover, the motion to substitute was served on defense counsel who will continue to serve as counsel for defendant Wengert as he was acting within the scope of his employment during the events alleged in plaintiff’s complaint. In any event, the Court may extend the time to substitute parties under Rule 25(a)(1). See Kernisant v. City of New York, 225 F.R.D. 422, 432 (E.D.N.Y. 2005) (granting motion to extend time under Rule 6(b) to file motion to substitute under Rule 25). Rule 6(b) provides, in pertinent part: When an act may or must be done within a specified time, the court may, for good cause, extend the time (A) with or without motion or notice if the court acts. . . or (B) on motion made after the time has expired if the party failed to act because of excusable neglect. Thus, the court may grant an extension under Rule 6(b)(1)(B) where the party who failed to make a timely motion demonstrates excusable neglect. To demonstrate excusable neglect, “the moving party has the burden of showing (1) a reasonable basis for noncompliance within the time specified, and (2) good faith.” Steward v. City of New York, No. 04-CV-1508 CBA RML, 2007 WL 2693667, at *5 (E.D.N.Y. Sept. 10, 2007). The question of what constitutes “excusable neglect” is “at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission,’ including prejudice to the other party, the reason for the delay, its duration, and whether the movant acted in good faith.” Id. quoting Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd., 507 U.S. 380, 395 (1993). As the Supreme Court explained in Pioneer, excusable neglect under Rule 6(b) “is a somewhat ‘elastic concept’ and is not limited strictly to omissions caused by circumstances beyond the control of the movant.” Plaintiff’s counsel filed a Id. at 391-92. second motion to substitute Maryrose Wengert and Earl G. Wengert as co-executors for defendant Nolan Wengert pursuant to Rule 25 on October 6, 2018. #75. See Docket The motion was duly served on Maryrose and Earl Wengert on October 10, 2018. See Docket #79. Taking into account all the relevant circumstances, including the (1) lack of prejudice to the City of Rochester which was always going to represent and indemnify all of the defendants -- including Officer Wengert before he passed away and now his Estate -- for any and all damages that may be awarded the individual defendants; (2) the relatively brief delay in serving the co-executors with the motion to substitute and (3) the apparent good faith exhibited by plaintiff’s counsel in trying to ascertain and serve the proper representatives of the estate, I find it equitable and just to extend the time for plaintiff to make the motion to substitute pursuant to Rule 25 to October 10, 2018, the date of service of the motion on Maryrose and Earl Wengert. Further, the non-jury trial in this matter shall commence on February 4, 2019 at 9:30 a.m. By separate letter, the Court will notify counsel of a date for the final pretrial conference. IT IS SO ORDERED. __/s/ Jonathan W. Feldman_______ JONATHAN W. FELDMAN United States Magistrate Judge Dated: December 18, 2018 Rochester, New York

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