Brock v. Avanzado
- Vincent Briccetti
- 7:19-cv-05891
- U.S. District Court · Southern District of New York
- 1
In Brock v. Avanzado, Judge Briccetti ordered defendants to explain how Dr. Avanzato’s estate would be substituted after his death in the civil-rights case.
The defendants, including Dr. Zamilus and the estate-substitution process for Dr. Avanzato, were required to provide the court with the requested information; the plaintiff was to receive a copy of the order.
What happened
Brock v. Avanzado concerns a civil-rights claim brought under federal law against Dr. Avanzato and Dr. Zamilus. The court had previously partly granted and partly denied the defendants’ request to dismiss the complaint.
After Dr. Avanzato died, the defendants filed notice of his death. Dr. Zamilus also answered the complaint and said Dr. Avanzato should be removed as a party under the federal substitution rule.
Judge Vincent L. Briccetti ordered the defendants to file a letter by October 21, 2020, explaining how Dr. Avanzato’s estate would be substituted as a defendant. The court stated that the civil-rights claim survived Dr. Avanzato’s death.
The detailed version
- Brock v. Avanzado · No. 7:19-cv-05891
- Vincent Briccetti
- Oct. 8, 2020
Background
The court had issued an earlier opinion and order on September 23, 2020, partly granting and partly denying the defendants’ motion to dismiss. That earlier order required Dr. Joseph Avanzato and Dr. Zamilus to answer the complaint by October 6, 2020.
On October 6, 2020, the defendants filed a suggestion of death stating that Dr. Joseph Avanzato had died on or about April 9, 2020. Dr. Zamilus filed an answer stating that Dr. Avanzato was being terminated as a party under Federal Rule of Civil Procedure 25 because of his death.
Court’s Analysis
The court stated that a claim under Section 1983 survives the death of a defendant. Rule 25(a)(1) provides that when a party dies and the claim is not extinguished, the court may order substitution of the proper party. It also provides that a motion for substitution must be made within 90 days after service of a statement noting the death or the action against the decedent must be dismissed.
Order
Judge Vincent L. Briccetti ordered the defendants to file a letter on the electronic docket by October 21, 2020, advising the court of the process by which Dr. Avanzato’s estate would be substituted as a defendant under Rule 25(a)(1). The order also directed chambers to mail a copy to the plaintiff at the address on the docket. This order did not decide the merits of the civil-rights claim.
Read the full 1-page opinion on CourtListener, the free public archive maintained by the Free Law Project.