Maiorana et al v. Occidental Fire & Casualty Company of North Carolina
ORDER: This Court adopts Magistrate Judge Reyes's Report and Recommendation in its entirety. Ordered by Judge William F. Kuntz, II on 1/22/2015. (Brucella, Michelle)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
GREGORY MAIORANA and SUSAN NACMIAS,
14-CV-25 (WFK) (RER)
-againstOCCIDENTAL FIRE & CASUALTY COMPANY
OF NORTH CAROLINA
WILLIAM, F. KUNTZ, II, United States District Judge
This action was initiated by the removal of the Complaint from the Supreme Court of the
State of New York, County of Richmond, to the Eastern District ofNew York on June 17, 2013.
(Dkt. 1.) In the Complaint, plaintiffs Greg~)fy Maiorana and Susan Nacmias ("Plaintiffs")
alleges that Occidental Fire & Casualty Company of North Carolina ("Defendant") failed to
honor the terms of a property insurance policy issued to Plaintiffs, and that Defendant is liable to
Plaintiffs for damage caused to their property by Hurricane Sandy. (Dkt. 1.)
On January 9, 2014, Defendant submitted a letter motion requesting a pre-motion
conference in anticipation of filing a motion to dismiss Plaintiffs' First, Second, and Third
Claims for breach of contract, breach of good faith and fair dealing, and violations of New York
General Business Law§§ 349 and 350, respectively. (Dkt. 1.) On January 15, 2014, this case
was designated a Hurricane Sandy case, along with hundreds of others.
On February 21, 2014, the Magistrate Judges overseeing the Hurricane Sandy cases
issued Case Management Order Number 1 ("CMO l"), which instructed Plaintiffs to voluntarily
withdraw "state law claims alleging bad faith or negligent claims of handling, certain forms of
relief, such as punitive damages, treble damages, and/or attorneys' fees, and requests for jury
trials" within fourteen days of the Order's issuance. (Dkt. 26, at 5.) In the alternative, Plaintiffs
were directed to "submit a letter to the assigned judge, explaining the legal basis for continuing
to pursue such claims in any particular case." (Id. at 5-6.) Plaintiffs failed to voluntarily dismiss
their claims or to submit a letter explaining their continued pursuit of such claims within the
stipulated time. (Dkt. 47, at 2.)
On May 9, 2014, Magistrate Judge Reyes filed a Report and Recommendation
recommending that "plaintiffs' second and third claims, as well as any request for extracontractual damages, be dismissed in accordance with CMO 1 as lacking any legal basis." (Dkt.
47, at 2.) The Report and Recommendation recounted the parties' history and documented the
failure of Plaintiffs to respond to the CMO 1. (Id. at 1-2.) The Report and Recommendation
concluded that Plaintiffs' second and third claims should be dismissed, and that Plaintiffs' first
claim should also be dismissed if Plaintiffs failed to respond to Defendant's motion for a premotion conference within fourteen days. (Id. at 2).
Plaintiffs filed a letter that same day opposing Defendant's request for a pre-motion
conference to dismiss Plaintiffs' first claim for damages only. (Dkt. 48.) Plaintiffs did not file
an objection to the Report and Recommendation's recommendation of dismissal of their second
and third claims. (Id.)
In reviewing a Report and Recommendation, the court "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)(l) (West 2015). When no objections have been filed, a district court reviews a Report
and Recommendation for clear error. See Zeitone v. Korsinsky & Klein, LLP, 13-CV-0383, 2013
WL 5937397, at* 1 (E.D.N.Y. Nov. 4, 2013) (Kuntz, J.) (citing Reyes v. Mantella, OO-CV-8936,
2003 WL 76997, at *1 (S.D.N.Y. Jan. 9, 2003) (Cote, J.)); Covey v. Simonton, 481 F. Supp. 2d
224, 226 (E.D.N.Y. 2007) (Garaufis, J.). If an objection is timely made to the Report and
Recommendation, then the district court judge reviews "those portions of the report ... or
recommendations to which objection is made" de nova. Id; see also Fed. R. Civ. P. 72(b)(3).
The Second Circuit has outlined five factors to be considered when determining whether
to dismiss a case. See Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996). The factors are: "(l) the
duration of the plaintiffl']s failure to comply with the court order, (2) whether plaintiff was on
notice that failure to comply would result in dismissal, (3) whether the defendants are likely to be
prejudiced by further delay in the proceedings, (4) a balancing of the court's interest in managing
its docket with the plaintiffs interest in receiving a fair chance to be heard, and (5) whether ... a
sanction less dramatic than dismissal" would be appropriate. Id
Plaintiffs have not objected to the Magistrate Judge's dismissal of this case's second and
third causes of action. The Court finds that there was no clear error in the Report and
Recommendation's determination that the second and third causes of action should be dismissed,
as all five of the Lucas factors counsel in favor of dismissal.
Plaintiffs have satisfactorily responded to the Defendant's motion for a pre-motion
conference within fourteen days of the Report and Recommendation being issued. As Plaintiffs
have complied with the caveat to the Magistrate Judge's Report and Recommendation, the Court
finds that the first cause of action in this case should not be dismissed.
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