Gowanus Industrial Park, Inc. v. Arthur H. Sulzer Associates, Inc.

Filing 109

ORDER ADOPTING REPORT AND RECOMMENDATIONS: For the reasons set forth in the enclosed Memorandum and in Judge Orenstein's thorough and well-reasoned R&R 108 , the court (1) grants AHS's motion for summary judgment 101 as to its first and sixth counterclaims; (2) awards AHS damages of $100,500 on its first counterclaim and $9,918.30 on its sixth counterclaim, resulting in a total damages award of $110,418.30; (3) denies the remainder of AHS's motion for summary jud gment; (4) denies Gowanus's cross-motion for summary judgment 106 as to AHS's first and sixth counterclaims; and (5) grants the remainder of Gowanus's motion for summary judgment. As there has not been any finding of bad faith, an award of attorney's fees and costs is not warranted. The Clerk of Court is respectfully requested to enter judgment and to close this case. Ordered by Judge Kiyo A. Matsumoto on 9/2/2014. (Tsai, Denise)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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GOWANUS INDUSTRIAL PARK, INC.
Plaintiff/CounterDefendant,
- against ARTHUR H. SULZER ASSOCIATES, INC.

NOT FOR PUBLICATION
ORDER ADOPTING REPORT AND
RECOMMENDATION___________
06-CV-105 (KAM) (JO)

Defendant/CounterClaimant.
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MATSUMOTO, United States District Judge:
On February 3, 2014, Plaintiff/Counter-Defendant
Gowanus Industrial Park, Inc. (“Gowanus”) and Defendant/CounterClaimant Arthur H. Sulzer Associates, Inc. (“AHS”) filed their
second post-remand cross-motions for summary judgment on the
counterclaims of AHS, pursuant to Federal Rule of Civil
Procedure 56. (ECF No. 101, AHS’s Motion for Summary Judgment
filed 2/3/14; ECF No. 102, AHS’s Memorandum of Law in Support of
Motion for Summary Judgment filed 2/3/14 (“AHS Mem.”); ECF No.
104, AHS’s Opposition to Cross-Motion for Summary Judgment filed
2/3/14 (“AHS Opp.”); ECF No. 106, Gowanus’s Motion for Summary
Judgment filed 2/3/14; ECF No. 99-1, Gowanus’s Memorandum of Law
in Support of Motion for Summary Judgment filed 12/6/13
(“Gowanus Mem.”); ECF No. 100, Gowanus’s Opposition to AHS’s
Motion for Summary Judgment filed 1/17/14 (“Gowanus Opp.”); ECF
No. 106, Gowanus’s Memorandum of Law in Further Support of

Motion for Summary Judgment filed 2/3/14 (“Gowanus Reply”).)
The court assumes that the parties are familiar with the facts
and proceedings to date as set forth in the record.
In its motion for summary judgment, AHS seeks to
prevail on its six amended counterclaims.

(See AHS Mem.; ECF

No. 95, Amended Answer filed 4/29/13 (“Am. Answer.”).)

In its

first counterclaim, AHS alleges that Gowanus was liable for
conversion under general maritime law based on its refusal to
return the ADA barge to AHS, and seeks damages amounting to the
barge’s rental value for the period from February 27, 2004,
through October 27, 2005 (the “Later Period,” after AHS notified
Gowanus of its ownership of the ADA barge and requested its
return).

(Id. at 7.)

In the second through fifth

counterclaims, pled in the alternative, AHS alleges that (1)
Gowanus’s failure to make any effort to ascertain the true owner
of the ADA barge entitles AHS to reimbursement of the barge’s
rental value at a daily rate during the period April 23, 2003,
through February 27, 2004 (the “Earlier Period,” before AHS
learned that the ADA barge was at the Gowanus facility and
requested its return) (id. at 7-8); (2) Gowanus should be
equitably estopped from asserting any defense relating to its
actual lack of knowledge of the true owner of the barge (id. at
9); (3) Gowanus breached its duty under general maritime law to
care for the barge or make reasonable efforts to locate its

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owner, and is thus liable for the barge’s daily rental rate (id.
at 9); and (4) Gowanus’s breach of duty to either care for the
barge or make a reasonable effort to locate its owner entitles
AHS to the barge’s monthly rental rate (id. at 10.)

In its

sixth counterclaim, AHS seeks to recover $15,000 for the cost of
repairs made to the ADA barge as a result of physical damage
sustained while the barge was afloat at the Gowanus facility
from April 23, 2003, through October 27, 2005.

(Id. at 10-11.)

By Order dated October 2, 2013, the court referred the
cross-motions for summary judgment to Magistrate Judge James
Orenstein for a Report and Recommendation. (See Order Referring
Cross-Motions dated 10/2/13.)

On July 22, 2014, Judge Orenstein

issued a Report and Recommendation, recommending that the court
grant AHS’s summary judgment motion as to its first and sixth
counterclaims and award AHS damages in the amount of
$110,418.30, but deny the remainder of AHS’s motion for summary
judgment; and deny Gowanus’s summary judgment motion as to AHS’s
first and sixth counterclaims, but grant the remainder of
Gowanus’s motion. (ECF No. 108, Report and Recommendation dated
7/22/14 (“R&R”) at 1, 15.)

Judge Orenstein notified the parties

of the right to file written objections within fourteen days of
receipt of the R&R, or no later than August 8, 2014. (R&R at
15.)

Judge Orenstein also advised the parties that failure to

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file objections within the statutory period waives the right to
appeal the district court’s order.

(R&R at 16.)

The statutory period for filing objections has now
expired, and neither party has filed any objection to Judge
Orenstein’s R&R.

(See docket.)
FACTUAL BACKGROUND

The court presumes familiarity with the lengthy
procedural history and detailed facts of this case, which have
been set forth comprehensively in Judge Orenstein’s R&R. (R&R at
1-6.)
DISCUSSION
In reviewing a Report and Recommendation, the district
court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” 28
U.S.C. § 636(b)(1).

Where no objection to a Report and

Recommendation has been timely made, the district court “‘need
only satisfy itself that that there is no clear error on the
face of the record.’” Jarvis v. N. Am. Globex Fund, L.P., 823 F.
Supp. 2d 161, 163 (E.D.N.Y. 2011) (quoting Wilds v. United
Parcel Serv., Inc., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003));
see also Urena v. New York, 160 F. Supp. 2d 606, 609-10
(S.D.N.Y. 2001).

In addition, failure to object timely

generally waives further judicial review.

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Marcella v. Capital

Dist. Physicians’ Health Plan, Inc., 293 F.3d 42, 46 (2d Cir.
2002).
Upon careful review of Judge Orenstein’s thorough and
well-reasoned R&R, the record in this case, the relevant case
law, and considering that neither party has objected to Judge
Orenstein’s R&R, the court finds no clear error in Judge
Orenstein’s recommended findings and hereby affirms and adopts
the R&R as the opinion of the court.

Accordingly, AHS’s motion

for summary judgment as to its first counterclaim of conversion
and sixth counterclaim to recover the cost of repair for
physical damage sustained by the ADA barge from April 23, 2003
through October 27, 2005, is granted, and AHS is awarded damages
in the total amount of $110,418.30 (consisting of $100,500 of
damages on the first counterclaim, and $9,918.30 of damages on
the sixth counterclaim).
AHS’s motion is denied.

(See R&R at 15.)

The remainder of

Gowanus’s cross-motion for summary

judgment as to AHS’s first and sixth counterclaims is denied,
but the remainder of Gowanus’s motion for summary judgment is
granted.
CONCLUSION
For the reasons set forth above and in Judge
Orenstein’s thorough and well-reasoned R&R, the court (1) grants
AHS’s motion for summary judgment as to its first and sixth
counterclaims; (2) awards AHS damages of $100,500 on its first

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counterclaim and $9,918.30 on its sixth counterclaim, resulting
in a total damages award of $110,418.30; (3) denies the
remainder of AHS’s motion for summary judgment; (4) denies
Gowanus’s cross-motion for summary judgment as to AHS’s first
and sixth counterclaims; and (5) grants the remainder of
Gowanus’s motion for summary judgment.

As there has not been

any finding of bad faith, an award of attorney’s fees and costs
is not warranted.

(See R&R at 14 n.7.)

The Clerk of Court is

respectfully requested to enter judgment and to close this case.
SO ORDERED.
Dated:

September 2, 2013
Brooklyn, New York
____________/s/_____________
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

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