Goldfinger v. United States of America
ORDER ADOPTING REPORT AND RECOMMENDATIONS -- For the reasons set forth in the ATTACHED WRITTEN SUMMARY ORDER, upon due consideration and review, the objections to the well reasoned Report and Recommendation ("R & R") issued by the Hon. Pegg y Kuo, U.S.M.J., on February 23, 2017, are overruled and the R & R is adopted in its entirety. Accordingly, Defendant's motion for summary judgment is granted and this action is dismissed. The Clerk of the Court is directed to close this case. SO ORDERED by Chief Judge Dora Lizette Irizarry on 3/31/2017. (Irizarry, Dora)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
DORA L. IRIZARRY, Chief Judge:
ADOPTING REPORT &
Before the Court are Bernard Goldfinger’s (“Plaintiff”) Objections to the Report and
Recommendation issued by the Hon. Peggy Kuo, U.S.M.J., on February 23, 2017 (the
“Objections” to the “R&R”), recommending that the United States of America’s (“Defendant”)
motion for summary judgment be granted. For the reasons set forth below, the R&R is adopted in
On March 2, 2015, Plaintiff initiated this action stating claims under the Federal Tort
Claims Act, 28 U.S.C. § 1346(b) and 28 U.S.C. § 2671, et seq., for the alleged negligence of
Gregory Maraj, a Sergeant in the United States Army. (Compl., Dkt. Entry No. 1.) Specifically,
Plaintiff alleges that Sgt. Maraj was negligent in his operation of a government-owned vehicle
(“GOV”) that struck Plaintiff when Sgt. Maraj reversed the GOV in order to park it. (Compl. at
On June 30, 2016, after the parties completed discovery, Defendant served its motion for
summary judgment, arguing that: (i) Sgt. Maraj was not negligent in his operation of the GOV;
The Court assumes familiarity with the facts of this case, which are set forth in greater detail in the R&R.
(R&R at 1-3.)
and (ii) Plaintiff was the sole proximate cause of the accident. (Def. Mot. For Summary J.
(“Defendant’s Motion” or “Def. Mot.”), Dkt. Entry No. 16; see Reply in Further Support of Def.
Mot., Dkt. Entry No. 18.) On July 26, 2016, Plaintiff served his opposition to Defendant’s Motion.
(Opp. to Def. Mot., Dkt. Entry No. 17.)
This Court referred the Defendant’s Motion to Magistrate Judge Kuo for the preparation
of the R&R, and, on February 23, 2017, the magistrate judge issued the R&R, recommending that
Defendants’ Motion be granted. (R&R, Dkt. Entry No. 21.) As an initial matter, the magistrate
judge determined that the entirety of the statement Defendant filed pursuant to Local Civil Rule
56.1(a) (“Defendant’s Rule 56.1 Statement”) should be deemed admitted because Plaintiff failed
to file a statement pursuant to Rule 56.1(b) to controvert Defendant’s version of the facts. (Id. at
2.) The magistrate judge went on to find that, while Sgt. Maraj owed Plaintiff a statutory duty
pursuant to N.Y. Veh. & Traf. Law §§ 1146(a), 1211(a), the “uncontroverted facts . . . establish
that Sgt. Maraj did not breach the duty he owed to Plaintiff.” (R&R at 6; accord Id. at 4.) In so
finding, the magistrate judge determined that “Plaintiff failed to exercise due care as a pedestrian.”
(Id. at 6.) The magistrate judge went on to assess the facts in the record beyond those stated in
Defendant’s Rule 56.1 Statement, and determined that, notwithstanding Plaintiff’s failure to
submit a Rule 56.1(b) statement, there would be no genuine disputes of material fact because “[t]o
the extent there are any contradictions between Plaintiff’s and Defendant’s accounts of the
incident, they are insignificant.” (Id. 8; accord Id. at 7.)
On March 10, 2017, Plaintiff filed the Objections, controverting the following findings and
conclusions by the magistrate judge:
. . . [T]hat . . . [D]efendant did not breach the duty of care that he owed to
the Plaintiff under New York Vehicle and Traffic Laws §§ 1146(a),
. . . [T]hat there are no material questions of fact.
. . . [T]hat summary judgment should be granted to [D]efendant.
(Objections at 2, Dkt. Entry No. 22.)
On March 23, 2017, Defendant timely opposed Plaintiff’s objections. (Opp. to the
Objections, Dkt. Entry No. 23.)
When a party objects to an R&R, a district judge must make a de novo determination as to
those portions of the R & R to which a party objects. See FED. R. CIV. P. 72(b)(3); United States
v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). Pursuant to the standard often articulated by the
district courts of this Circuit, “[i]f a party simply relitigates his original arguments, the Court
reviews the Report and Recommendation only for clear error.” Antrobus v. New York City Dep’t
of Sanitation, 2016 WL 5390120, at * 1 (E.D.N.Y. Sept. 26, 2016) (citations and quotation marks
omitted); see also Rolle v. Educ. Bus Transp., Inc., 2014 WL 4662267, at *1 (E.D.N.Y. Sept. 17,
2014) (“[A] rehashing of the same arguments set forth in the original papers . . . would reduce the
magistrate’s work to something akin to a meaningless dress rehearsal.”) (citations and internal
quotation marks omitted). On the other hand, the Second Circuit Court of Appeals has suggested
that a clear error review may not be appropriate “where arguably ‘the only way for a party to raise
. . . arguments is to reiterate them.’” Moss v. Colvin, 845 F.3d 516, 520 n.2 (2d Cir. 2017) (quoting
Watson v. Geithner, 2013 WL 5441748, at *2 (S.D.N.Y. Sept. 27, 2013) (alteration added in Moss;
other alterations from Moss omitted). Nonetheless, a court will not “ordinarily . . . consider
arguments, case law and/or evidentiary material which could have been, but [were] not, presented
to the magistrate judge in the first instance.” Santiago v. City of New York, 2016 WL 5395837, at
*1 (E.D.N.Y. Sept. 26, 2016) (internal citation and quotation marks omitted). After its review, the
district court may then “accept, reject, or modify the recommended disposition; receive further
evidence; or return the matter to the magistrate judge with instructions.” FED. R. CIV. P. 72(b)(3);
see also 28 U.S.C. § 636(b)(1).
The Court has reviewed the R&R de novo with respect to Plaintiff’s stated objections, and
has reviewed the remainder of the R&R for clear error. The Court notes that Plaintiff’s three
objections are really one: Plaintiff objects to the R&R’s conclusion that no disputed issue of
material fact existed regarding whether Sgt. Maraj breached the duty he undisputedly owed to
Plaintiff. In making this argument, Plaintiff urges the court to find that a disputed issue of fact
exists as to whether Sgt. Maraj’s actions violated one of two New York traffic laws, thereby
making him per se negligent. (See Objections at 3-5; N.Y. Veh. & Traf. Law §§ 1146(a), 1211(a).)
The first of the traffic laws raised in Plaintiff’s Objections, states:
Notwithstanding the provisions of any other law to the contrary, every driver of a
vehicle shall exercise due care to avoid colliding with any bicyclist, pedestrian, or
domestic animal upon any roadway and shall give warning by sounding the horn
when necessary. For the purposes of this section, the term “domestic animal” shall
mean domesticated sheep, cattle, and goats which are under the supervision and
control of a pedestrian.
N.Y. Veh. & Traf. Law § 1146(a). The second statute, § 1211(a), provides that “[t]he driver of a
vehicle shall not back the same unless such movement can be made with safety and without
interfering with other traffic.”
Plaintiff argues he has presented sufficient evidence to establish a disputed issue of material
fact as to either: (i) Sgt. Maraj’s lack of “due care” in driving the GOV in reverse; or (ii) that such
action could not have been “made with safety” under the circumstances. However, at no point has
Plaintiff presented evidence that Sgt. Maraj acted carelessly or negligently. (See, e.g., R&R at 6
(“Plaintiff does not argue that Sgt. Maraj drove at an excessive speed, was inattentive, or was
driving in an uncontrolled manner. The uncontroverted facts also do not suggest that Sgt. Maraj
could have taken any reasonable action to avoid hitting Plaintiff.”) (citations omitted).) Indeed,
the magistrate judge found that the facts supported a finding that Plaintiff himself was the party
who failed to exercise due care. (See Id.) Moreover, when the magistrate judge looked outside of
the facts as stated in Defendant’s Rule 56.1 Statement, which she was not required to do, there
were no significant contradictions between Plaintiff’s and Defendant’s accounts of the incident.
(Id. at 7-8.) As Plaintiff cannot point to any specific evidence that Sgt. Maraj’s acted negligently,
he cannot prevail on his claim.
Upon due consideration and review, the objections are overruled. Accordingly, the R&R
is adopted in its entirety and summary judgment is granted to Defendant. This action is dismissed.
Dated: Brooklyn, New York
March 31, 2017
DORA L. IRIZARRY
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