Yu et al v. Town of Southold et al

Filing 100

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
---------------------------------------X
HUI HUI YU, CHENG KAI YU, and
CHENG KAI YU REVOCABLE TRUST,
Plaintiffs,
-against-

MEMORANDUM & ORDER
10-CV-2943(JS)(ETB)

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
Official capacities,
Defendants.
---------------------------------------X
APPEARANCES
For Plaintiffs:
Hui Hui Yu, Esq.
903 Ocean Avenue
Brooklyn, NY 11226
For Defendants:

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.
BACKGROUND
The
facts

and

Court

assumes

procedural

familiarity

background

of

with

this

the

underlying

case,

which

are

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).

Briefly,

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
25,

2010.

practice

At
in

that

this

time,

District,

Mrs.

Yu,

filed

a

an

attorney

Notice

of

admitted

to

Appearance

on

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
unsuccessful

attempts

to

obtain

1

permits,

and

the

legal

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.
2

consequences

that

improvements.

flowed

Although

from

Plaintiffs’

Plaintiffs

initially

unauthorized
named

nineteen

separate defendants and asserted a number of claims, the Court’s
Summary Judgment Order drastically changed the landscape of this
case.

In that Order, the Court granted the various defendants

summary judgment on almost all of Plaintiffs’ claims.
Judgment

Order

thereafter

was

at

17.)

Mrs.

In

Yu’s

fact,

claim

the

for

only

remaining

excessive

force

Defendant Lieutenant Frank Kruszeski (“Defendant”).
Judgment Order at 16.)

(Summary
claim

against
(Summary

According to Mrs. Yu, she had been

sitting in the public area of the Town Hall Annex when Defendant
grabbed
outside.

her

arm,

pulled

her

from

the

chair,

and

forced

her

(Am. Compl. at 16.)
Litigation in this case thus proceeded on the single

remaining claim.

Following the Summary Judgment Order, Mrs. Yu

has repeatedly moved to stay the proceedings and to withdraw as
counsel.

(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
occasions.

(R&R at 2.)

In his most recent Order on this issue,

Judge Boyle warned Mrs. Yu that her failure to comply with the
Court’s

orders

would

expose

her

to

sanctions,

potential dismissal of her remaining cause of action.

3

including
(Nov. 9,

2012 Order, Docket Entry 86.)

To date, Mrs. Yu has yet to file

a pretrial order.
Accordingly, Judge Boyle recommends that Mrs. Yu be
precluded

from

introducing

any

exhibits

at

trial

and

from

calling any witnesses at trial and, further, that the Court
dismiss this case based upon Mrs. Yu’s refusal to comply with
previous orders.

(R&R at 2.)
DISCUSSION

The Court will first address the applicable standard
of

review

before

turning

to

Judge

Boyle’s

recommendation

of

dismissal.
I.

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
and

recommendation

within

fourteen

days

of

receiving

recommended disposition.

See FED. R. CIV. P. 72(b)(2).

receiving

objections

any

recommendation,

timely
the

district

“court

to
may

the
accept,

the
Upon

magistrate’s
reject,

or

modify, in whole or in part, the findings or recommendations
made by the magistrate judge.”

28 U.S.C. § 636(b)(1)(C); see
4

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).
When

a

party

raises

an

objection

to

a

magistrate

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

conclusory

or

original

or

general

arguments,

objections,
the

Court

simply

reviews

Recommendation only for clear error.”
Inc.,

249

F.R.D.

48,

51

(E.D.N.Y.

marks and citation omitted).

reiterates

the

Report

his
and

Pall Corp. v. Entegris,
2008)

(internal

quotation

Furthermore, even in a de novo

review of a party’s specific objections, the Court ordinarily
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.”

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).
II.

Recommendation of Dismissal
Before

dismissal,

the

turning
Court

regarding the R&R.

directly
first

to

notes

the

recommendation

Plaintiff’s

of

submissions

On December 24, 2012, seventeen days after
5

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
from

some

mental

and

physical

inability to timely respond.
fact

that

both

letters

ailments

resulting

(Docket Entry 92.)

were

already

untimely,

in

her

Despite the
this

Court

generously granted an extension of time until January 18, 2013
for Plaintiff to file her objections to the R&R.

(Docket Entry

94.)
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.
entitled

The first such filing, dated January 18, 2013, is

“claim

no

(Docket Entry 95.)

notice

of

order

for

motion

and

appeal.”

In that one page letter, Mrs. Yu asserts

that the Court should grant her2 an opportunity to “re-argue,”
“re-new,”

and

appeal

(Docket Entry 95 ¶ 3.)

the

Court’s

Summary

Judgment

Order.

Nowhere in that letter does Mrs. Yu

address Judge Boyle’s R&R or her failure to file a pretrial
order.

2

The letter refers to “Plaintiffs” in the plural, despite the
fact that Mrs. Yu is the only remaining plaintiff.
6

Thereafter, Mrs. Yu filed a second letter, entitled
“motion to continue claim” on January 24, 2013.
97.)

(Docket Entry

Again, Mrs. Yu’s letter is difficult to decipher.

What is

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.)

Mrs. Yu

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
be

appropriate.

“A

district

court

has

the

authority

under

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
prosecute.’”
2003)

(quoting

1995)).

Burrell v. AT&T, 63 F. App’x 588, 589 (2d Cir.
Simmons

v.

Abruzzo,

49

F.3d

83,

87

(2d

Cir.

In making this determination, the Court must examine

the following factors, keeping in mind that no one factor is
dispositive:
1)
the
duration
of
[the]
plaintiff’s
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
against
[the]
plaintiff’s
interest
in
7

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)).
These
Boyle

first

factors

directed

September 14, 2012.

weigh

in

Plaintiff

favor

to

file

(Docket Entry 75.)

of
a

dismissal.
pretrial

Judge

order

on

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
three months).
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.”
86.)

(Docket Entry

Additionally, this case is nearly three years old, and

Plaintiff has significantly contributed to the delays.

As the

R&R correctly notes, Plaintiff has repeatedly sought to stay
proceedings.

(R&R at 2.)

Despite the fact that Plaintiff is an

attorney, and despite the Court’s rulings that it will not stay
8

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
effect.
ensure

Finally, “the court needs to calendar congestion and
an

orderly

and

expeditious

disposition

of

cases.”

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.
CONCLUSION
The R&R is ADOPTED in its entirety and Plaintiff’s
case

is

dismissed.

The

Clerk

of

the

Court

is

directed

to

terminate all pending motions and to mark this matter as CLOSED.

SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

May
1 , 2013
Central Islip, NY

9