Opinion
84-CV-13, 82-CV-887
November 4, 2002
Donald R. Jermosen, USP Allenwood, White Deer, PA, Plaintiff Pro Se.
Eliot Spitzer, Attorney General of the State of New York, Bruce J. Bovin, Esq., Assistant Attorney General, Albany, NY, for Defendants.
ORDER
Thomas A. Coughlin was the Commissioner of the New York State Department of Correctional Services {"DOCS"), at the time he was identified as a defendant in the above named lawsuits. He subsequently retired as DOCS Commissioner, and the record does not show that after Coughlin's retirement date, his successor's name was ever substituted for his as a defendant in these actions. Defendant Coughlin passed away on August 23, 2001. The actions were still pending on that date, and remain so at present.
Defendant Coughlin was being represented in the lawsuits by the office of the Attorney General of the State of New York, and in several of the lawsuits, the State Attorney General's office filed suggestion of death motions pursuant to Rule 25 of the Federal Rules of Civil Procedure. Rule 25(a)(1) provides that notice of the death of a party to a lawsuit must be given to all the remaining parties, and if a motion for substitution of the deceased party is not made within 90 days after service of the death is suggested on the record, the action will be dismissed as against the decedent.
The service of a suggestion of death and the making of a motion for substitution was unnecessary in the instant case. As DOCS Commissioner, Thomas A. Coughlin was a public officer, and upon his retirement as DOCS Commissioner, he was automatically succeeded as a defendant in the lawsuits by his successor pursuant to Rule 25(d)(1) of the Fed.R.Civ.P. This section of the rule also provides that "[a]n order of substitution may be entered at any time, but the omission to enter such an order shall not effect the substitution."
The fact that defendant Coughlin was sued in both his individual and official capacity does not prevent or influence the automatic substitution. Because New York State provides defense counsel and pays in full any adverse judgment that might be entered, New York Public Officers Law § 17, the person holding the position of DOCS Commissioner is under no personal obligation as a result of any such judgment, and thus not a real party in interest. Tores v. Toledo, 586 F.2d 858 (1st Cir. 1978).
Accordingly, any suggestions of death motions filed in the above named cases are WITHOUT EFFECT.
IT IS SO ORDERED.