Bricklayers Insurance and Welfare Fund, Bricklayers Pension Fund, Bricklayers Supplemental Annuity Fund, Bricklayers and Trowel Trades International Pension Fund, New York City and Long Island Joint et al v. Rockmore Contracting Corp. et al

Filing 32

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATIONS: MJ Reyes's Report and Recommendation 29 dated 3/8/13 contains no error, let alone plain error. Accordingly, the Court adopts it without de novo review. The Clerk shall enter judgment in favor of Rockmore and against R. Smith and the Estate, jointly and severally, in the total amount of $49,766.69 ($45,938.10 plus $3,828.59 in prejudgment interest through May 15, 2013). Ordered by Judge Frederic Block on 5/15/2013. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------x
BRICKLAYERS INSURANCE AND
WELFARE FUND, BRICKLAYERS
PENSION FUND, BRICKLAYERS
SUPPLEMENTAL ANNUITY FUND,
BRICKLAYERS AND TROWEL TRADES
INTERNATIONAL PENSION FUND,
NEW YORK CITY AND LONG ISLAND
JOINT APPRENTICESHIP AND
TRAINING FUND, INTERNATIONAL
MASONRY INSTITUTE, and JEREMIAH
SULLIVAN, JR., in his fiduciary capacity as
Administrator, BRICKLAYERS LOCAL 1,
INTERNATIONAL UNION OF
BRICKLAYERS AND ALLIED CRAFT
WORKERS, and BRICKLAYERS LABOR
MANAGEMENT RELATIONS
COMMITTEE,
Plaintiffs,
-againstROCKMORE CONTRACING CORP. and
HANOVER INSURANCE GROUP,
Defendants.
--------------------------------------------------------x
ROCKMORE CONTRACTING CORP.,
Third-Party Plaintiff,
-againstR. SMITH RESTORATION, INC., and the
ESTATE OF RICHARD SMITH,
Third-Party Defendants.
--------------------------------------------------------x
BLOCK, Senior District Judge:

MEMORANDUM AND ORDER
Case No. 11-CV-3854 (FB) (RER)

On March 8, 2013, Magistrate Judge Levy issued a report and
recommendation (“R&R”) recommending that Rockmore Contracting Corp. (“Rockmore”)
be awarded $45,938.10 in damages on their third-party claims against R. Smith Restoration,
Inc. (“R. Smith”), and the Estate fo Richard Smith (“the Estate”), plus prejudgment interest
through the entry of judgment. The R&R recited that “[a]ny objections to this Report and
Recommendation must be filed . . . within fourteen days of receipt hereof,” and that
“[f]ailure to file timely objections may waive the right to appeal the District Court’s Order.”
R&R at 10.
On March 12th, Rockmore’s counsel served copies of the R&R on R. Smith
and the Estate, making objections due by March 26th. To date, no objections have been
filed.
If clear notice has been given of the consequences of failure to object, and
there are no objections, the Court may adopt the R&R without de novo review. See Thomas
v. Arn, 474 U.S. 140, 149-50 (1985); Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir.
2002) (“Where parties receive clear notice of the consequences, failure timely to object to
a magistrate’s report and recommendation operates as a waiver of further judicial review
of the magistrate’s decision.”). The Court will excuse the failure to object, however, and
conduct de novo review if it appears that the magistrate judge may have committed plain
error. See Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 174 (2d Cir.
2000).

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The R&R contains no error, let alone plain error. Accordingly, the Court
adopts it without de novo review. The Clerk shall enter judgment in favor of Rockmore and
against R. Smith and the Estate, jointly and severally, in the total amount of $49,766.69
($45,938.10 plus $3,828.59 in prejudgment interest through May 15, 2013).
SO ORDERED.

___________________________________
FREDERIC BLOCK
Senior United States District Judge
May 15, 2013
Brooklyn, New York

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