O'Rourke v. Ehsan Food Corp

Background

Christopher O’Rourke sued Ehsan Food Corp. and Kwong May, LLC, alleging that architectural barriers and a failure to provide accommodations at property containing Captain Chicken Restaurant denied him full access to and enjoyment of the facilities because of his disability. He asserted claims under the Americans with Disabilities Act, the New York State Human Rights Law, and the New York City Human Rights Law. He sought injunctive and declaratory relief under the federal law and damages under the state and city laws.

O’Rourke died on June 14, 2020, while the case was pending. His lawyer filed a notice of death on July 23, 2020. The lawyer also told the court that he did not yet know whether O’Rourke’s widow would seek substitution as the plaintiff. The court allowed counsel to file a motion to substitute O’Rourke’s surviving spouse, but no substitution motion or timely request for an extension was filed.

Defendants’ Motion

Defendants moved under Federal Rule of Civil Procedure 25(a)(1), which requires dismissal of an action involving a deceased party if no motion to substitute the proper successor or representative is made within 90 days after service of a statement noting the death. The rule permits an extension in certain circumstances, including good cause or excusable neglect. Excusable neglect requires a reasonable basis for missing the deadline and good faith, evaluated in light of circumstances such as prejudice, the length and effect of the delay, the reason for the delay, and good faith.

Court’s Analysis

O’Rourke’s counsel did not dispute missing the 90-day deadline. Counsel argued that New York executive orders issued during the COVID-19 pandemic tolled the deadline and that New York court closures delayed obtaining letters of administration. The court rejected those arguments. It concluded that the executive orders expired on July 6, 2020, before counsel learned of O’Rourke’s death, and that the orders addressed state-law deadlines rather than the federal deadline in Rule 25.

The court also noted that the New York County Surrogate’s Court had announced that it was accepting filings beginning July 8, 2020. In addition, the federal court remained open for new filings, so counsel could have filed a substitution motion or requested an extension. The court found no reasonable basis for the failure to comply with Rule 25 and determined that the neglect was not excusable.

Ruling

Judge Lewis J. Liman granted defendants’ motion to dismiss the action. The Clerk of Court was directed to close the motion at docket entry 49. The opinion did not decide the underlying disability claims.