TADCO Construction Corp. et al v. Dormitory Authority of the State of New York et al

Filing 140

ORDER ADOPTING REPORT AND RECOMMENDATIONS: Upon a careful review of the record and Judge Azrack's well-reasoned and thorough Report and Recommendation 135 , the court finds no clear error and hereby affirms and adopts the Report and Recommenda tion in all respects as the opinion of the court. Accordingly, the individual defendants' motion for summary judgment as to DeMartino's § 1983 claims is granted in its entirety, and TADCO's remaining state law claims are dismisse d without prejudice to refiling in state court. Defendants' request for attorney's fees is denied based on the record before the court. See Fed. R. Civ. P. 54(d)(2). The Clerk of Court is respectfully directed to enter judgment in favor of individual defendants and close this case. Defendants may apply to the Clerk of Court for costs within fourteen days. Fed. R. Civ. P. 54(d)(1). Defendants' 139 motion for extension of time to file a response to plaintiffs' objections is terminated as moot. Ordered by Judge Kiyo A. Matsumoto on 9/18/2014. (Tsai, Denise)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------- X
TADCO CONSTRUCTION CORP. and THOMAS
DEMARTINO,

ORDER ADOPTING REPORT
AND RECOMMENDATION

Plaintiffs,
08-CV-0073 (KAM)(JMA)
-againstDORMITORY AUTHORITY OF THE STATE OF
NEW YORK, TYRONE MIDDLETON, PAT
CINELLI, JAMES GRAY, JACK KEMP and
JOHN DOES #1-#5,
Defendants.
-------------------------------------X
MATSUMOTO, United States District Judge:
On January 7, 2008, plaintiffs TADCO Construction
Corporation (“TADCO”) and Thomas DeMartino (“DeMartino,” and
collectively with TADCO, “plaintiffs”) commenced this action
against the Dormitory Authority of the State of New York
(“DASNY”), and individual defendants Tyrone Middleton
(“Middleton”), Pat Cinelli (“Cinelli”), James Gray (“Gray”) and
Jack Kemp (“Kemp”).

(See generally ECF No. 1, Complaint filed

1/7/08 (“Compl.”).)

Plaintiffs allege that defendants violated

their civil rights pursuant to 42 U.S.C. § 1983 and New York
state law, and additionally, TADCO asserted a breach of contract
claim against DASNY.

(See generally Compl.)

On March 19, 2010, the Hon. David G. Trager dismissed
several of plaintiffs’ claims.

(ECF No. 39, Order dated

3/19/10); see also TADCO Contr. Corp. v. Dormitory Auth. of the
State of N.Y. [hereinafter TADCO I], 700 F. Supp. 2d 253
(E.D.N.Y. 2010).

The only claims remaining after Judge Trager’s

Order were DeMartino’s three federal law claims against the
individual defendants, alleging false arrest, malicious
prosecution, and abuse of process under § 1983 based on
DeMartino’s arrest in November 2006, and various state law
claims raised by TADCO.

TADCO I, 700 F. Supp. 2d at 277.

The parties conducted limited discovery on DeMartino’s
remaining federal claims.

(See Docket Nos. 98-105.)

On

November 22, 2013, the individual defendants filed their motion
for summary judgment as to DeMartino’s federal claims.

(ECF No.

127, Individual Defendants’ Motion for Summary Judgment filed
11/22/13 (“Ind’l Defs.’ Mot. for Summ. J.”); ECF No. 128-1,
Memorandum in Support of Summary Judgment filed 11/22/13
(“Defs.’ Br.”); ECF No. 128-2, Rule 56.1 Statement in Support of
Motion for Summary Judgment filed 11/22/13 (“Defs.’ 56.1
Stmt.”).)

In their motion for summary judgment, the individual

defendants also requested that the court award movants the
costs, including attorney’s fees, of bringing the motion.
Defs.’ Br. at 38.)
judgment.

(See

DeMartino opposed the motion for summary

(See ECF No. 124, DeMartino’s Rule 56.1 Statement,

Opposition, and Supporting Documents filed 10/25/13 (“DeMartino

2

Opp.”).)
On December 11, 2013, this court referred the
individual defendants’ motion for summary judgment to the Hon.
Joan M. Azrack for a Report and Recommendation (“R&R”).
Order Referring Motion dated 12/11/13.)

(See

On September 2, 2014,

Judge Azrack issued an R&R recommending that the motion for
summary judgment be granted in its entirety, and that the court
decline to exercise pendent jurisdiction over TADCO’s remaining
state law claims.

(R&R at 16.)

In the R&R, Judge Azrack noted

that any objections to the R&R must be filed within fourteen
days of the issuance of the R&R, and that failure to file
objections within the specified time waives the right to appeal
the district court’s order.

(Id. (citing 28 U.S.C. § 636(b)(1);

Fed. R. Civ. P. 6(a), 72).)
On September 15, DeMartino and TADCO timely filed
objections to the R&R.
entirety.

DeMartino objected to the R&R in its

(ECF No. 136, DeMartino Objection filed 9/15/14

(“DeMartino Obj.”).)

TADCO objected to the R&R’s recommendation

that this court decline exercising jurisdiction over its
remaining state law claims.
9/16/14 (“TADCO Obj.”).)

(ECF No. 137, TADCO Objection filed

DeMartino also joined in TADCO’s

objection regarding the state law claims.
DeMartino Supplement filed 9/16/14.)

3

(ECF No. 138,

On September 17, 2014,

defendants filed a motion for extension of time to file a
response to plaintiffs’ objections.
Extension of Time filed 9/17/14.)

(ECF No. 139, Motion for
Because the court finds that

plaintiffs’ objections to the R&R are meritless, the court
respectfully denies defendants’ request for extension of time as
moot.
FACTUAL BACKGROUND
The court presumes familiarity with the facts of this
case, which have been set forth comprehensively in Judge
Azrack’s Report and Recommendation, and which are adopted
herein. 1

(R&R at 4-7); see also TADCO I, 700 F. Supp. 2d at 257-

259. 2
STANDARD OF REVIEW
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.”
U.S.C. § 636(b)(1)(C).

28

The district court “shall make a de novo

1

The court only has one minor correction regarding the R&R’s recitation
of the facts. The R&R states, “When Thomas returned after initially being
escorted off the job site, Middleton had him arrested because he reasonably
concluded that he had exercised the contract’s removal provision.” (R&R at
10 (emphasis added).) Under the court’s reading of the parties’ 56.1
statements, evidence, and submissions, the court finds that Middleton did not
“have” Thomas DeMartino arrested, but that the evidence clearly establishes
that Middleton called safety officers to have DeMartino removed because he
returned to the work site after the first removal, and was ignorant of the
safety officers’ arrest power.
2
Defendants’ Memorandum of Law also accurately recounts the tortured
procedural history of this action. (Defs.’ Br. at 2-11.)

4

determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.”

28 U.S.C. § 636(b)(1).

Where “the objecting party makes

only conclusory or general objections, or simply reiterates the
original arguments, the Court will review the report and
recommendation strictly for clear error.”

Zaretsky v. Maxi-

Aids, Inc., No. 10-CV-3771, 2012 WL 2345181, at *1 (E.D.N.Y.
June 18, 2012) (internal quotation marks omitted); Ortiz v.
Barkley, 558 F. Supp. 2d 444, 451 (S.D.N.Y. 2008) (“Reviewing
courts should review a report and recommendation for clear error
where objections are merely perfunctory responses, argued in an
attempt to engage the district court in a rehashing of the same
arguments set forth in the original petition.” (internal
quotation marks omitted)); Mario v. P & C Food Mkts., Inc., 313
F.3d 758, 766 (2d Cir. 2002) (“Merely referring the court to
previously filed papers or arguments does not constitute an
adequate objection”); see also Soley v. Wasserman, 823 F. Supp.
2d 221, 228 (S.D.N.Y. 2011).

The district court is “permitted

to adopt those sections of a magistrate judge’s report to which
no specific objection is made, so long as those sections are not
facially erroneous.”

Batista v. Walker, No. 94 Civ. 2826, 1995

WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.)
(citation and internal quotation marks and brackets omitted).

5

Furthermore, even on de novo review of specific
objections, the court “will not consider ‘arguments, case law,
and/or evidentiary material which could have been, but [were]
not, presented to the magistrate judge in the first instance.’”
Brown v. Smith, No. 09-CV-4522, 2012 WL 511581, at *1 (E.D.N.Y.
Feb. 15, 2012) (quoting Kennedy v. Adamo, No. 02-CV-1776, 2006
WL 3704784, at *1 (E.D.N.Y. Sept. 1, 2006)).
DISCUSSION
I.

DeMartino’s Objections
Plaintiff DeMartino makes four specific objections to

the R&R, none of which is sufficient to warrant de novo review.
First, DeMartino argues that the R&R had no basis for
concluding that probable cause existed to arrest DeMartino for
trespassing.

(DeMartino Obj. at 1-2.)

Citing the same

authority originally cited in his opposition to the motion for
summary judgment, DeMartino argues that “[i]t is undisputed that
DeMartino was contractually licensed and privileged to be on the
worksite pursuant to the agreement drafted by defendant” DASNY.
(Id.; see DeMartino Opp. at 8-9.)
Second, DeMartino asserts that there are triable
issues of fact regarding probable cause and credibility, and
that “arguable probable cause” did not exist for the individual
defendants’ actions.

(DeMartino Obj. at 2.)

6

Again, DeMartino

restates the same arguments previously raised in his opposition
to defendants’ motion for summary judgment.

(See DeMartino Opp.

at 11-12.)
Third, DeMartino objects to the R&R’s interpretation
of the contract between DASNY and TADCO, arguing that under the
“plain language” of the contract, “only TADCO had the
contractual authority to remove its employees.”

(DeMartino Obj.

at 3 (emphasis in original).)
Fourth, DeMartino argues that the individual
defendants failed to plead probable cause as an affirmative
defense and asserts that the R&R “was silent” on the issue of
which party bears the burden of proving probable cause.
(DeMartino Obj. at 4.)
After reviewing DeMartino’s objections, the court
finds that they are meritless and insufficient to warrant a de
novo review of the R&R.

As to DeMartino’s first, second, and

fourth objections, the court finds that they merely restate the
same arguments and rely on the same legal authority originally
raised in the opposition to defendants’ motion for summary
judgment, and already considered and rejected by Judge Azrack.
(See DeMartino Opp. at 8-12.) 3 DeMartino readily acknowledges

3

DeMartino objects that the R&R “was silent” about the burden of proving
probable cause. (DeMartino Obj. at 4.) The R&R, however, clearly stated
that while it “is unclear whether defendants or plaintiffs bear the burden of

7

that his objections simply reiterate his original arguments.
(DeMartino Obj. at 1 (“As pointed out in DeMartino’s
opposition”), 2 (“As more fully outlined in DeMartino’s
opposition”), 4 (“as argued more fully in DeMartino’s
opposition”).)

This court will not entertain “attempt[s] to

engage the district court in a rehashing of the same arguments
set forth in the original” motion papers.

Ortiz, 558 F. Supp.

2d at 451 (internal citation and quotation marks omitted).
Consequently, the court reviews these portions of the R&R for
clear error, and finding none, DeMartino’s first, second, and
fourth objections are respectfully denied. 4
With respect to DeMartino’s third objection, which
contends that the R&R erroneously interpreted the contract
between DASNY and TADCO and that only TADCO had contractual
authority to remove its employees, including DeMartino.
DeMartino previously argued in his opposition to the motion for
summary judgment that only TADCO had contractual authority to
remove its employees.

(See DeMartino Opp. at 2, 12).

Thus, the

court finds that this objection is also a restatement of

proof on the issue of probable cause,” it “ultimately doesn’t matter because,
given the record, I find that Middleton had probable cause to believe Thomas
was trespassing when he returned to the Project after having been escorted
off.” (R&R at 10 n.7.)
4
Out of an abundance of caution, the court has reviewed the R&R under a
de novo standard, and finds no clear error in Judge Azrack’s well-reasoned
and thorough R&R.

8

DeMartino’s arguments raised in his opposition, and that the
there is no clear error in the R&R.
Moreover, even under de novo review, DeMartino’s
objection must be denied.

Judge Trager found, in his Order

dismissing certain claims, and this court agrees with Judge
Trager, that “[t]he contract between DASNY and TADCO clearly
gave DASNY authority to have DeMartino removed from the worksite
upon request.”

TADCO I, 700 F. Supp. 2d at 269, 276.

The law

of the case doctrine does not preclude this court from
reconsidering issues on summary judgment that were initially
raised in a motion to dismiss.

McAnaney v. Astoria Fin. Corp.,

665 F. Supp. 2d 132, 142 (E.D.N.Y. 2009).

Accordingly, out of

an abundance of caution, the court reviews the contract language
and Judge Azrack’s R&R regarding who had authority to remove
TADCO employees under a de novo standard.

Upon analyzing this

portion of the R&R under de novo review, the court agrees with
Judge Trager and Judge Azrack and concludes that the plain
language of the contract authorized DASNY to unilaterally remove
TADCO employees from the construction project, including
DeMartino.

(See ECF No. 128-5, Kemp Declaration filed 11/22/13,

Ex. B (contract between TADCO and DASNY), Art. 5, § 5.01(B); R&R
at 3 (citing contract provision § 5.01(B))); TADCO I, 700 F.
Supp. 2d at 261, 269 (citing contract provision § 5.01(B)).

9

Therefore, the court respectfully denies DeMartino’s third
objection to the R&R.
II.

TADCO’s Objections
TADCO, joined by DeMartino, argues that the R&R failed

to properly consider the factors of judicial economy,
convenience, fairness, and comity from Carnegie-Mellon Univ. v.
Cohill, 484 U.S. 343, 350 n.7 (1988), in recommending that this
court decline to exercise jurisdiction over the remaining state
law claims.

(TADCO Obj. at 2.)

In the R&R, Judge Azrack cited

the Cohill factors and relevant legal authority, and recommended
that the court decline to exercise pendent jurisdiction over
TADCO’s state law claims.

(R&R at 15.)

TADCO offers no legal

authority to support its argument that a court must explicitly
discuss each Cohill factor when declining to exercise
jurisdiction over state law claims (see id. at 2), and the court
has not found any.

However, assuming, arguendo, that de novo

review of this portion of the R&R is warranted, the court upon
de novo review concludes that the R&R did not err in declining
to exercise jurisdiction over TADCO’s remaining state law
claims.
A.

Standard of Review
A district court’s decision whether to exercise

“‘jurisdiction after dismissing every claim over which it had

10

original jurisdiction is purely discretionary.’”

Chenensky v.

N.Y. Life Ins. Co., 942 F. Supp. 2d 388, 391 (S.D.N.Y. 2013)
(quoting Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635,
639 (2009)); see also 28 U.S.C. § 1367(c)(3).

The “decision to

retain jurisdiction is discretionary and not a litigant’s
right.”

Klein & Co. Futures, Inc. v. Bd. of Trade of City of

N.Y., 464 F.3d 255, 263 (2d Cir. 2006).

Under Cohill, a

district court weighs various factors to determine whether to
exercise jurisdiction over remaining state law claims in a
particular case, including judicial economy, fairness,
convenience, and comity.

Cohill, 484 U.S. at 350.

Where a

plaintiff’s federal claims have been dismissed, the Cohill
factors ordinarily point towards declining to exercise
jurisdiction over the state law claims.

Id. at 350 n.7; Klein &

Co. Futures, 464 F.3d at 262.
B.

Application
First, TADCO relies primarily on the factor of

fairness, and TADCO claims that it has been “severely prejudiced
by the delays in adjudicating its claims,” and that dismissal of
the state law claims in this case would be “grossly
inequitable.”

(TADCO Obj. at 2.)

TADCO also asserts that

“there have been extraordinary delays in this case,” and “[m]uch
of this delay is attributable to the defendants’ delays and

11

failures to meet multiple deadlines in conducting . . . ‘limited
discovery’” on DeMartino’s federal claims.

(Id.)

“Fairness involves questions of equity: Will declining
jurisdiction prejudice the parties, and are the parties
responsible for any such prejudice?”
at 392.

Chenensky, 942 F. Supp. 2d

Upon a review of the procedural history of this case,

the court finds plaintiffs’ arguments regarding prejudice to be
disingenuous at best, and that consequently, this factor weighs
in favor of declining jurisdiction.

Over the course of this

case, TADCO and/or DeMartino have repeatedly asked for, and been
granted, extensions of time, just as often or more often than
have defendants.

(See ECF Nos. 23, 25, 28, 31, 32, 88, 109.)

In addition, DeMartino’s issues with his legal
representation, issues that arose entirely of his own making,
further delayed the case.

Thus, Mr. Ha’s withdrawal from

representation of DeMartino delayed the case for one month for
DeMartino to find a new attorney, and also extended the briefing
schedule for the motion to dismiss.

(See ECF No. 27, Letter

from Mr. Ha dated 9/15/08; ECF No. 30, Order dated 10/2/08.) 5

In

addition, the briefing schedule for DeMartino’s motion for
5

DeMartino was ordered to obtain new counsel or file a status report by
November 2, 2008. (ECF No. 30, Order dated 10/2/08.) Almost two years
later, DeMartino filed a letter on November 1, 2010, explaining that he had
not been aware that his attorney had withdrawn, and requesting “the
opportunity to be heard” as he was “very close to hiring an attorney.” (ECF
No. 49, DeMartino Letter dated 11/1/10.)

12

reconsideration was placed in abeyance when it became known that
DeMartino had failed to disclose this litigation in his
bankruptcy proceeding, and that the Trustee of DeMartino’s
bankruptcy estate needed to investigate whether it was
appropriate to intervene in this litigation.

(See ECF No. 56,

Motion to Stay filed 3/2/11; Order dated 3/3/11; ECF No. 57,
Letter Advising Court of Abandonment of Debtor’s Claims filed
4/1/11.)
This case was further delayed after DeMartino’s new
counsel, Mr. Warshawsky, filed a motion to withdraw
representation, indicating that DeMartino may not have been
truthful during his bankruptcy deposition in denying involvement
in this litigation, and that “assuming the truth of [DeMartino’s
bankruptcy testimony], I cannot continue to represent him in
this case.”
3.)

(ECF No. 61, Motion to Withdraw filed 4/22/11, at

DeMartino opposed the motion for withdrawal, and the court

held a hearing on June 6, 2011, for DeMartino to show cause why
his claims should not be dismissed and why Mr. Warshawky’s
motion for withdrawal should not be granted.

(Order to Show

Cause dated 6/13/11.) 6 The court ultimately granted Mr.
Warshawky’s motion to withdraw, and DeMartino obtained new
6

At the July 13, 2011, Show Cause Hearing, the court concluded that
DeMartino’s two statements under oath at his deposition in the bankruptcy
proceeding and at the show cause hearing were contradictory and that “both
cannot be true.” (ECF No. 85, 7/13/11 Hearing Transcript at 18.)

13

representation, Mr. Vilella.
72.)

(See Order dated 7/13/11; ECF No.

DeMartino’s motion for reconsideration was filed on

September 19, 2011, more than six months after the filing date
originally set for the motion.

(See Minute Order dated 2/24/11;

ECF No. 75, Motion for Reconsideration filed 9/19/11.)

Thus,

through no fault of defendants, DeMartino’s own issues with his
representation and his bankruptcy court proceeding delayed the
case by more than half a year.
Moreover, the court notes that DeMartino chose to
pursue a motion for reconsideration and a motion for a
certificate of appealability, which required additional time for
the parties to fully brief the motions and for this court to
adjudicate the defendants’ long anticipated motion for summary
judgment.
Finally, the court notes that TADCO’s accusation that
defendants were responsible for “[m]uch of [the] delay” in this
case due to failures to meet deadlines in conducting limited
discovery is not accurate, as defendants only filed one request
for an extension of time (see ECF No. 101, Motion for Extension
of Time to Complete Discovery filed 11/19/12), and which
extended the discovery timeline by a little over two months.
(See ECF No. 98, Minute Entry dated 8/16/12 (ordering discovery
to be completed by 11/30/12); ECF No. 103, Minute Order dated

14

11/26/12 (granting extension to 2/15/13).)

Thus, compared to

the lengthy delays caused by DeMartino, defendants’ extension
request caused only a minor delay.
Accordingly, given that plaintiffs were equally
responsible, if not more so, for the “extraordinary delays” in
this case, the factor of fairness weighs against exercising
jurisdiction over TADCO’s remaining state law claims.
Regarding the closely-related factor of judicial
economy, TADCO argues that this court is “familiar with this
case and is in the best position at this stage to efficiently
manage this litigation and ensure the expeditious adjudication
of TADCO’s claims.”

(R&R at 3.)

When considering the value of

judicial economy, courts “consider their familiarity with the
facts, the timing of the case, the number of parties and claims,
the amount of discovery, and whether there is ongoing parallel
litigation.”

Chenensky, 942 F. Supp. 2d at 392 (citing Allard

v. Arthur Anderson & Co., 957 F. Supp. 409, 425 (S.D.N.Y.
1997)).
Here, only limited discovery regarding DeMartino’s
federal law claims has occurred, and unlike in other cases in
which courts have retained jurisdiction over pendent state-law
claims, this case is not on the eve of trial nor remotely “trial
ready”.

Allard, 957 F. Supp. at 425 (collecting cases).

15

In

addition, although the complaint in this case was filed in 2008,
it was only transferred to this docket in 2011.
Entry dated 1/28/11.)

(See Docket

Thus, “[t]he judicial investment in [the

case] before [2011] is irretrievably lost,” and “[w]hatever
familiarity” this court has with the legal and factual issues
relating to the actual merits of TADCO’s claims “is derived from
papers and is revealed in the opinions . . . which are available
to be read by any judicial officer.”

Allard, 957 F. Supp. at

425 (declining to exercise jurisdiction where case was pending
for thirteen years, but case had only been on district court’s
docket for three years).

Moreover, the court does not believe

that the facts in this case are so complicated as to present any
challenge for a state court to gain familiarity with and address
the remaining state law claims.

Accordingly, retaining the

remaining state law claims would do little to serve judicial
economy, and this factor weighs against exercising jurisdiction.
Regarding the factor of comity, the court considers
“the nature of the state law claims, the character of the
governing state law, and the relationship between the state and
federal claims.”

Chenensky, 942 F. Supp. 2d at 392 (quoting

City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 173
(1997)) (internal quotation marks omitted); see also United Mine
Workers v. Gibbs, 383 U.S. 715, 726 (1966) (“Needless decisions

16

of state law should be avoided both as a matter of comity and to
promote justice between the parties, by procuring for them a
surer-footed reading of applicable law . . . . [I]f the federal
law claims are dismissed before trial . . . the state law claims
should be dismissed as well.”).

Where there are parallel

proceedings in federal and state court, there is a danger of
disparate results and the value of comity weighs against
retaining supplemental jurisdiction.
at 395.

Chenensky, 942 F. Supp. 2d

Here, although TADCO’s remaining state law claims do

not appear especially complex or novel, TADCO is already
pursuing an earlier-filed state court action against DASNY,
arising out of the same construction project.

(See Defs.’ Br.

at 2 n.3 (referencing TADCO v. DASNY, Index No. 600038/07, filed
on 1/5/07).) 7

Because state courts “are the best arbiters of

state law,” Chenensky, 942 F. Supp. 2d at 395, and to avoid
disparate results regarding a contract dispute arising from a
state-funded project involving the Dormitory Authority of the
State of New York, the factor of comity weighs against this
court exercising jurisdiction.

7

TADCO, along with Frank DeMartino, the President of TADCO, filed
another federal action in this court against defendants DASNY and the state
Department of Labor that is pending. The actions asserted in that case
relate to a different construction project than the project at issue in this
action and in the pending state court action. (See Docket No. 13-cv-5273,
DeMartino et al. v. New York State Department of Labor et al., ECF No. 1,
Complaint filed 9/23/13.)

17

Finally, the factor of convenience also weighs in
favor of declining to exercise jurisdiction.

As noted before,

there has only been limited discovery on DeMartino’s federal law
claims, and no discovery has yet occurred on any state law
claim.

Moreover, TADCO need no longer be concerned about delays

generated by DeMartino’s federal claims.

(See TADCO Obj. at 2).

Given the current state of the case, the court therefore finds
that it would not be unduly inconvenient for TADCO to pursue its
remaining state law claims in state court, which is best
equipped to adjudicate matters of state law.

See Chenensky, 942

F. Supp. 2d at 393.
Accordingly, assuming, arguendo, that de novo review
is warranted on the R&R’s recommendation to decline to exercise
jurisdiction over TADCO’s remaining state law claims, the court
agrees that the R&R correctly recommended declining to exercise
jurisdiction.

Therefore, the court affirms and adopts Judge

Azrack’s well-reasoned and thorough R&R in its entirety as the
opinion of the court.
CONCLUSION
Upon a careful review of the record and Judge Azrack’s
well-reasoned and thorough Report and Recommendation, the court
finds no clear error and hereby affirms and adopts the Report
and Recommendation in all respects as the opinion of the court.

18

Accordingly, the individual defendants’ motion for summary
judgment as to DeMartino’s § 1983 claims is granted in its
entirety, and TADCO’s remaining state law claims are dismissed
without prejudice to refiling in state court.

Defendants’

request for attorney’s fees is denied based on the record before
the court.

See Fed. R. Civ. P. 54(d)(2).

The Clerk of Court is

respectfully directed to enter judgment in favor of individual
defendants and close this case.

Defendants may apply to the

Clerk of Court for costs within fourteen days.

Fed. R. Civ. P.

54(d)(1).

SO ORDERED.
Dated:

September 19, 2014
Brooklyn, New York
______
/s/
Kiyo A. Matsumoto
United States District Judge

19