Kim v. County Of Nassau

• Court: District Court, E.D. New York
• Decided: October 20, 2020
• Docket: 2:19-cv-03264
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------------------------------X SUNG D. KIM,

Plaintiff, ORDER 19-CV-3264 (SJF)(ARL) - against- FILED COUNTY OF NASSAU, NASSAU COUNTY CLERK POLICE DEPARTMENT, THOMAS KRUMPTER 4:14 pm, Oct 20, 2020 former acting Police Commissioner, in his individual and official capacity, SERGEANT TARA COMINSKY U.S. DISTRICT COURT and POLICE OFFICER BRIAN MONK, EASTERN DISTRICT OF NEW YORK LONG ISLAND OFFICE Defendants. -------------------------------------------------------------------X FEUERSTEIN, District Judge:

Before the Court is a Report and Recommendation (Athe Report@) of the Honorable Arlene R. Lindsay, United States Magistrate, dated October 2, 2020, (1) recommending (a) that defendants’ motion to dismiss be granted and the case dismissed; and (2) advising inter alia, (a) that A[a]ny objections to th[e] Report . . . must be filed with the Clerk of the Court . . . within 14 days” and (b) that A[f]ailure to file objections within this period waives the right to appeal the District Court’s Order.@ Report at 34 (citations omitted). A copy of the Report was served upon counsel for all parties via ECF on the date it was issued, October 2, 2020. Despite such service, no objections have been filed, nor has any party sought an extension to do so. For the reasons set forth below, Magistrate Judge Lindsay’s Report is adopted in its entirety. I. DISCUSSION A. Standard of Review Any party may serve and file written objections to a report and recommendation of a magistrate judge within fourteen (14) days after being served with a copy thereof. 28 U.S.C. ' 636(b)(1); FED. R. CIV. P. 72(b)(2). While any portion of such a report and recommendation to which a timely objection has been made is reviewed de novo, see 28 U.S.C. ' 636(b)(1); FED. R. CIV. P. 72(b)(3), the Court is not required to review the factual findings or legal conclusions of the magistrate judge as to which no proper objections are interposed. See Thomas v. Arn, 474 U.S. 140, 150, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985). Indeed, “[w]here parties receive clear notice of the consequences, failure to timely object to a magistrate’s report and recommendation operates as a waiver of further judicial review of the magistrate’s decision.” Smith v. Campbell, 782 F.3d 93,

102 (2d Cir. 2015) (quoting Mario v. P & C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002)). To accept the magistrate=s report and recommendation absent a timely objection, the court need only be satisfied that there is no clear error on the face of the record. See FED. R. CIV. P. 72(b); Baptichon v. Nevada State Bank, 304 F. Supp. 2d 451, 453 (E.D.N.Y. 2004), aff'd, 125 F. App'x 374 (2d Cir. 2005). Nonetheless, the waiver rule is “nonjurisdictional” and, thus, the Court may excuse a violation thereof “in the interests of justice.” King v. City of N.Y., Dept of Corr., 419 F. App=x 25, 27 (2d Cir. 2011) (summary order) (quoting Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993)); see also DeLeon v. Strack, 234 F.3d 84, 86 (2d Cir. 2000). “Such discretion is exercised based on, among other factors, whether the defaulted argument has substantial merit or, put otherwise,

whether the magistrate judge committed plain error in ruling against the defaulting party.” Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 174 (2d Cir. 2000); accord King, 419 F. App=x at 27. Whether or not proper objections have been filed, the district judge may, after review, accept, reject, or modify any of the magistrate judge’s findings or recommendations. 28 U.S.C. ' 636(b)(1); FED. R. CIV. P. 72(b). B. Review of the Report

No party has filed objections to the Report within the time prescribed in 28 U.S.C.

2 §636(b)(1)(C), nor has any party sought an extension of the deadline. As the parties were provided with adequate notice of the Report and an express warning of the consequences of a failure to timely file objections thereto, their failure to interpose timely objections to the Report operates as a waiver of further judicial review. See Caidor v. Onondaga Cnty., 517 F.3d 601, 602-03 (2d Cir. 2008); Mario, 313 F.3d at 766. Thus, this Court “need only satisfy itself that there is no clear error on the face of the record to accept a magistrate judge’s report and

recommendation.” Safety-Kleen Sys., Inc. v. Silogram Lubricants Corp., No. 12-CV-4849, 2013 WL 6795963, at *1 (E.D.N.Y. Dec. 23, 2013). After a careful review of the full record, including Magistrate Judge Lindsay’s thorough and well-reasoned Report, the Court finds no plain error in either the reasoning or the conclusions reached therein, and accordingly, adopts it in its entirety. II. CONCLUSION The Report is adopted in its entirety. Defendants’ motion to dismiss, Docket Entry [14] is granted and the Clerk of the Court is directed to close the case. SO ORDERED.

/s/ Sandra J. Feuerstein Sandra J. Feuerstein United States District Judge

Dated: Central Islip, New York October 20, 2020