Yu et al v. Town of Southold et al
MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATION - For the reasons set forth herein, the R&R is ADOPTED in its entirety and Plaintiff's case is dismissed. The Clerk of Court is directed to terminate all pending motions and to mark this case as CLOSED. So Ordered by Judge Joanna Seybert on 5/1/2013. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
HUI HUI YU, CHENG KAI YU, and
CHENG KAI YU REVOCABLE TRUST,
MEMORANDUM & ORDER
TOWN OF SOUTHOLD IN SUFFOLK COUNTY
NEW YORK, SCOTT A. RUSSELL (Chief
Executive), SOUTHOLD TOWN JUSTICE
COURT, WILLIAM H. PRICE, Jr. (Chief
Justice), RUDOLPH H. BRUER (Justice),
the OFFICE OF THE TOWN ATTORNEY,
MARTIN FINNEGAN, Esq. (Town Attorney),
LORI HULSE [MONTEFUSCO], Esq.
(Assistant Town Attorney), the
SOUTHOLD TOWN BOARD OF TRUSTEES, JILL
M. DOHERTY (President, Trustee),
JAMES KING (President, Trustee), the
SOUTHOLD TOWN POLICE DEPARTMENT,
CARLISLE COCHRAN (Chief), FRANK
KRUSZESKI (Lieutenant), DONALD
DZENKOWSKI (Bay Constable),
ANDREW C. EPPLE, Jr. (Bay Constable),
DAVID M. OKULA (Police), SOUTHOLD TOWN
ZONING BOARD, SOUTHOLD TOWN TAX
RECEIVER and ASSESSORS, JOHN DOEs and
JANE DOEs, individually and in their
Hui Hui Yu, Esq.
903 Ocean Avenue
Brooklyn, NY 11226
Thomas Sledjeski, II, Esq.
Thomas C. Sledjeski & Associates, PLLC
18 First Street
P.O. Box 479
Riverhead, NY 11901
SEYBERT, District Judge:
Currently pending before the Court is Magistrate Judge
E. Thomas Boyle’s Report and Recommendation (“R&R”), issued on
December 7, 2012.1
For the following reasons, the R&R is ADOPTED
in its entirety.
described in detail in this Court’s Memorandum and Order dated
August 10, 2012 (the “Summary Judgment Order,” Docket Entry 74)
as well as in Judge Boyle’s R&R (Docket Entry 90).
Plaintiffs Hui Hui Yu (“Mrs. Yu” or “Plaintiff”), Cheng Kai Yu
(“Dr. Yu”), and the Cheng Kai Yu Revocable Trust (the “Trust”
and, collectively, “Plaintiffs”) commenced this action on June
behalf of all Plaintiffs.
Essentially, this case began as a civil rights case
arising out of Plaintiffs’ being cited for making unauthorized
improvements to their wetlands property, Plaintiffs’ subsequent
Also pending before the Court is Defendant Frank Kruszeski’s
motion to dismiss.
(Docket Entry 88.)
Judge Boyle’s R&R does
not directly address the motion to dismiss, although Defendant
Kruszeski also seeks dismissal for Plaintiff’s failure to comply
with court orders.
separate defendants and asserted a number of claims, the Court’s
Summary Judgment Order drastically changed the landscape of this
In that Order, the Court granted the various defendants
summary judgment on almost all of Plaintiffs’ claims.
Defendant Lieutenant Frank Kruszeski (“Defendant”).
Judgment Order at 16.)
According to Mrs. Yu, she had been
sitting in the public area of the Town Hall Annex when Defendant
(Am. Compl. at 16.)
Litigation in this case thus proceeded on the single
Following the Summary Judgment Order, Mrs. Yu
has repeatedly moved to stay the proceedings and to withdraw as
(See R&R at 2 (citing Docket Entries 76, 79, 82, 84).)
Her requests, however, have been denied and Judge Boyle has
directed Mrs. Yu to file a pretrial order on three different
(R&R at 2.)
In his most recent Order on this issue,
Judge Boyle warned Mrs. Yu that her failure to comply with the
potential dismissal of her remaining cause of action.
2012 Order, Docket Entry 86.)
To date, Mrs. Yu has yet to file
a pretrial order.
Accordingly, Judge Boyle recommends that Mrs. Yu be
calling any witnesses at trial and, further, that the Court
dismiss this case based upon Mrs. Yu’s refusal to comply with
(R&R at 2.)
The Court will first address the applicable standard
Standard of Review
“When evaluating the report and recommendation of a
magistrate judge, the district court may adopt those portions of
the report to which no objections have been made and which are
not facially erroneous.”
Walker v. Vaughan, 216 F. Supp. 2d
290, 291 (S.D.N.Y. 2002) (citation omitted).
A party may serve
and file specific, written objections to a magistrate’s report
See FED. R. CIV. P. 72(b)(2).
modify, in whole or in part, the findings or recommendations
made by the magistrate judge.”
28 U.S.C. § 636(b)(1)(C); see
also FED. R. CIV. P. 72(b)(3).
A party that objects to a report
and recommendation must point out the specific portions of the
report and recommendation to which they object.
See Barratt v.
Joie, No. 96-CV-0324, 2002 WL 335014, at *1 (S.D.N.Y. Mar. 4,
2002) (citations omitted).
judge’s report, the Court must conduct a de novo review of any
contested sections of the report.
See Pizarro v. Bartlett, 776
F. Supp. 815, 817 (S.D.N.Y. 1991).
But if a party “makes only
Recommendation only for clear error.”
marks and citation omitted).
Pall Corp. v. Entegris,
Furthermore, even in a de novo
review of a party’s specific objections, the Court ordinarily
material which could have been, but [were] not, presented to the
magistrate judge in the first instance.”
Kennedy v. Adamo, No.
02-CV-1776, 2006 WL 3704784, at *1 (E.D.N.Y. Sept. 1, 2006)
(internal quotation marks and citation omitted).
Recommendation of Dismissal
regarding the R&R.
On December 24, 2012, seventeen days after
Judge Boyle’s R&R, Plaintiff moved for an extension of time to
file her objections.
(Docket Entry 91.)
On January 9, 2013,
Plaintiff again wrote to the Court, noting that she had not yet
read the R&R, but explaining that she and her husband suffered
inability to timely respond.
(Docket Entry 92.)
generously granted an extension of time until January 18, 2013
for Plaintiff to file her objections to the R&R.
Following the Court’s extension of time, Mrs. Yu filed
two documents, and although it is unclear what relief she seeks
through these filings, they do not appear to object to the R&R
in any way.
The first such filing, dated January 18, 2013, is
(Docket Entry 95.)
In that one page letter, Mrs. Yu asserts
that the Court should grant her2 an opportunity to “re-argue,”
(Docket Entry 95 ¶ 3.)
Nowhere in that letter does Mrs. Yu
address Judge Boyle’s R&R or her failure to file a pretrial
The letter refers to “Plaintiffs” in the plural, despite the
fact that Mrs. Yu is the only remaining plaintiff.
Thereafter, Mrs. Yu filed a second letter, entitled
“motion to continue claim” on January 24, 2013.
Again, Mrs. Yu’s letter is difficult to decipher.
clear, however, is that Mrs. Yu addresses claims that this Court
had previously dismissed and raises continued alleged grievances
against the dismissed Defendants.
(Docket Entry 97 at 1-2.)
She further explains her inability to litigate the case and her
efforts to find new counsel.
(Docket Entry 97 at 2.)
does not object to the R&R or explain why she has been able to
file various letters with this Court but not a pretrial order.
Thus, Plaintiff has not objected.
Even if this Court
were to conduct a de novo review, however, dismissal would still
Fed.R.Civ.P. 41(b) to ‘dismiss a complaint for failure to comply
with a court order, treating the noncompliance as a failure to
Burrell v. AT&T, 63 F. App’x 588, 589 (2d Cir.
In making this determination, the Court must examine
the following factors, keeping in mind that no one factor is
failures or non-compliance; 2) whether [the]
plaintiff had notice that such conduct would
result in dismissal; 3) whether prejudice to
the defendant is likely to result; 4) [the
court’s] interest in managing its docket
receiving an opportunity to be heard; and 5)
. . . the efficacy of a sanction less
draconian than dismissal.
Waters v. Camacho, 288 F.R.D. 70, 71 (S.D.N.Y. 2013) (quoting
Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52,
63 (2d Cir. 2000)).
September 14, 2012.
(Docket Entry 75.)
Since then, he issued
two more orders directing Plaintiff to file the pretrial order.
(Docket Entries 81, 86.)
Plaintiff, however, has failed to
comply for over seven months.
See Burrell, 63 F. App’x at 589-
90 (affirming dismissal where plaintiff failed to comply with
court orders for one year); Waters, 288 F.R.D. at 71 (dismissing
case where plaintiff failed to comply with court orders for
Moreover, in his November 9, 2012 Order, Judge Boyle
warned Plaintiff that her “failure to comply with this Order
will expose the plaintiff’s sole remaining cause of action to
sanctions, including preclusion and dismissal.”
Additionally, this case is nearly three years old, and
Plaintiff has significantly contributed to the delays.
R&R correctly notes, Plaintiff has repeatedly sought to stay
(R&R at 2.)
Despite the fact that Plaintiff is an
attorney, and despite the Court’s rulings that it will not stay
proceedings in order to allow her to find new counsel at this
time, she has continually submitted motions on these issues.
Given these facts, a lesser sanction would likely have little
Finally, “the court needs to calendar congestion and
Peruggi v. Cnty. of Suffolk, No. 09-CV-5605, 2012 WL 2702539, at
*2 (E.D.N.Y. July 3, 2012).
Thus, the above factors favor dismissal.
The R&R is ADOPTED in its entirety and Plaintiff’s
terminate all pending motions and to mark this matter as CLOSED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
1 , 2013
Central Islip, NY
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