District Judge Arthur D. Spatt

Judgment was entered in 2011 against Caruso, who defaulted in plaintiff pension funds’ action to compel payment of $92,435 withdrawal liability assessed against Country Ford Ltd. under ERISA. On Feb. 2, plaintiffs informed the court that Caruso died on Jan. 18. They intended to satisfy judgment from his estate. Caruso’s will named son Michael as executor. Michael was also so listed in letters testamentary and a probate petition, listing the estate as lacking assets. Plaintiffs’ moved to substitute the executor and distributees of Caruso’s estate in Caruso’s stead. The court granted Michael’s substitution, as executor, but denied substitution of Caruso’s other children and widow. As executor, Michael was a proper party for substitution. Discussing New York Estate Powers and Trusts Law §4-1.1 the court found Caruso’s wife and his children could potentially qualify as “distributees.” However, persuaded by Grass Valley Terrace v. United States, Rende v. Kay, Gronowicz v. Leonard and other rulings, the court found plaintiff pension funds did not overcome rulings that a distributee is not a “proper party” for substitution purposes until the estate has been fully distributed. Plaintiffs submitted no proof of the estate’s distribution.