Giambrone et al v. Meritplan Insurance Company

Filing 174

ORDER ADOPTING REPORT AND RECOMMENDATIONS. For the reasons set forth in the attached Memorandum and Order, the Court adopts 170 Magistrate Judge Steven L. Tiscione's report and recommendation. Accordingly, the Court grants Third-Party Defendants' motion to dismiss and dismisses the Third-Party Complaint with prejudice. Ordered by Judge Margo K. Brodie on 5/24/2017. (Daugherty, Shannon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------PIETRO GIAMBRONE and BRIGID
GIAMBRONE,
Plaintiffs,

MEMORANDUM & ORDER
13-CV-7377 (MKB) (ST)

v.
MERITPLAN INSURANCE COMPANY,
Defendant.
--------------------------------------------------------------MERITPLAN INSURANCE COMPANY,
Third-Party Plaintiff,
v.
CITY OF NEW YORK and NEW YORK CITY
DEPARTMENT OF PARKS AND RECREATION,
Third-Party Defendants.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiffs, Pietro Giambrone and Brigid Giambrone, commenced the above-captioned
action against Defendant Meritplan Insurance Company (“Meritplan”) on October 24, 2013,
alleging causes of action arising out of property damage to the Giambrone’s home caused by
tropical storm Hurricane Sandy on or about October 29, 2012.1 On April 27, 2016, Meritplan
filed a Third-Party Complaint against the City of New York and the New York City Department

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Plaintiff initially filed the instant lawsuit in New York State Supreme Court, Richmond
County, and Meritplan removed the action to the Eastern District of New York on December 27,
2013. (Notice of Removal, Docket Entry No. 1.)

of Parks and Recreation, alleging claims for contribution and indemnity in connection with the
damage to Plaintiffs’ property. (Third-Party Compl., Docket Entry No. 140.)
On August 12, 2016, Third-Party Defendants moved to dismiss the Third-Party
Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).
(Third-Party Defs. Mot. to Dismiss, Docket Entry No. 157.) On August 19, 2016, the Court
referred this matter to Magistrate Judge Steven L. Tiscione for a report and recommendation.
(Order dated Aug. 19, 2016.) By report and recommendation dated February 28, 2017 (the
“R&R”), Judge Tiscione recommended that the Court grant Third-Party Defendants’ motion to
dismiss. (R&R 23, Docket Entry No. 170.) No party has objected to the R&R.
A district court reviewing a magistrate judge’s recommended ruling “may accept, 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). When a party submits a timely objection to a report and
recommendation, the district court reviews de novo the parts of the report and recommendation
to which the party objected. Id.; see also United States v. Romano, 794 F.3d 317, 340 (2d Cir.
2015). The district court may adopt those portions of the recommended ruling to which no
timely objections have been made, provided no clear error is apparent from the face of the
record. John Hancock Life Ins. Co. v. Neuman, No. 15-CV-1358, 2015 WL 7459920, at *1
(E.D.N.Y. Nov. 24, 2015). The clear error standard also applies when a party makes only
conclusory or general objections, or simply reiterates its original arguments. Chime v. Peak Sec.
Plus, Inc., 137 F. Supp. 3d 183, 187 (E.D.N.Y. 2015) (“General or conclusory objections, or
objections which merely recite the same arguments presented to the magistrate judge, are
reviewed for clear error.” (citation omitted)); see also DePrima v. N.Y.C. Dep’t of Educ., No. 12CV-3626, 2014 WL 1155282, at *3 (E.D.N.Y. Mar. 20, 2014) (collecting cases).

2

The Court has reviewed the unopposed R&R and, finding no clear error, the Court adopts
Judge Tiscione’s R&R in its entirety pursuant to 28 U.S.C. § 636(b)(1). Accordingly, the Court
grants Third-Party Defendants’ motion to dismiss and dismisses the Third-Party Complaint with
prejudice.

SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: May 24, 2017
Brooklyn, New York

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