Santiago v. City of New York et al

Filing 20

MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATIONS, More than 17 days have passed since service of the R&R via first class mail and, to date, there are no objections to the R&R. For the reasons stated herein, Judge Pohorelsky's Report and Recommendation dated 5/17/12 [D.E. 18] is adopted in its entirety. (Ordered by Judge Sandra L. Townes on 6/18/2012) c/m Fwd. for Judgment. (Galeano, Sonia)

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IN CLER~ 5 OFI'IGE\lVfrl
USDISTRIC'CO'IRT~
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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STEVE SANTIAGO,

BROOKLYN OFFICE

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JUN ll 1011

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Plaintiff,

MEMORANDUM & ORDER
-against11-cv-5765 {SL T) (VVP)
THE CITY OF NEW YORK, eta/_,
Defendant.
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TOWNES, United States Oi5trid Judge:
On November 23, 20 I 1, Plaintiff Steve Santiago {"Plaintiff') Jiled the instant action
alleging, inter alia. race discrimination under 42 U.S.C. § 1981 and § 1983. Shortly after the
initial conference in March of2012, Plaintiffs counsel moved to withdraw li1lm further
representation ofPlaintifl; and Magistrate Judge Viktor Pohorelsky scheduled a hearing on the
motion. Plaintiff was served with notice of the heanng, told he must appear in person. and
warned that if he failed to appear ''the court [would I conclude that (Plaintiff] ha[d] abandoned
his claims and they Iwould] be dismissed.'' [D.E. 15, 16.] Plaintitl; nonetheless, failed to
appear. Further. Plaintiff's coun~el informed the court that he had not spoken to h1s client for
more than a month and a half prior to the hearing date, when he advised Plaintiff that he planned
to withdraw as Plaintiffs attorney. Plaintiff did not object and Plaintiffs counsel had not heard
from Plaintiff since then.
Judge Pohorelsky issued his Report and Recommendation {"R&R") on May 17, 2012,
recommending that this case be dismissed because Plaintiff had abandoned his claims. The R&R
advised that any objections needed to be filed "within 14 days of receipt of the report." (R&R at
2.) Judge Pohorelsky directed Plaintiffs counsel to serve the R&R on Plaintiff via first-class
mail and lirst-class, certified mail. which he did. {ld.; D.E. 19.) Plaintitrs counsel also sen.ed a

copy of the R&R via emaiL [D.E. 19.] Plaintiff has not signed l"or the documents sent via
certified mail, nor provided the Court with an affirmative indication that he has received the
items. (See id.) However, since Plaintiff has apparently abandoned his claims and.
consequently, this Court caJUlot expect to obtain affirmative proof of "receipt," the Court
considers the R&R received by Plaintiff as long as Plaintiff was properly served. Plaintiff was
served pursuant to Rule 5(b)(2)(C) under which '"service is complete upon mailing" when the
item is mailed "to the person's last known address." Fed. R. Civ. Pro. 5(b)(2)(C). Further,
parties have an afllnnative duty to provide the Court with their correct address. In accordance
with these rules, the R&R was proper]} served on Plaintiff on May 24. 2012 at his last known
address. Additionally, under Fed. R. Civ. Pro. 6(d), ··[w]hen a party may or must act within a
specified lime after service and service is made under [Fed. R. Civ. Pro.] Rule S(bj(2){C) ... 3
days are added"" after the specified time period. PlaintifT, therefore, was allowed 3 additional
days beyond the original 14 to respond.
More than 17 days have passed since service of the R&R via first class mail and, to date.
there are no objections to the R&R. i\ district collrt is not required to review the factual or legal
conclusions of the magistrate judge as to those portions of a report and recommendation to which
no objections are addressed. See Th"mm v. Arn, 474 U.S. 140, ISO (1985). In addition. failure
to file timely objections may wai"e the right to appeal this Court's Order. Ser 28 U.S.C. §
636(b)(1); Small v. Sec'y ofHeallh & fluman Servs.. 892 F.2d IS, 16 (2d Cir. 1989}. The Court
therefore adopts the R&R in its entirety as the opinion of the Court pursuant to 28 U.S.C. §
636(b)(1).

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CONCLUSION

For the reasons stated above, Judge Pohorclsky's Report and Recommendation dated
May 17, 2012 [D.E. 18] is adopted in its entirety.

SO ORDERED,

------------/sANDRA L TOWNES '
United States District Judge

Dated: June ;S ,20!2
Brooklyn, New York

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