Cankat v. Noisette Cafe Inc. et al

Filing 27

MEMORANDUM and ORDER ADOPTING REPORT AND RECOMMENDATION: There being no error as to defendant Caf only, the Court adopts MJ Gold's 19 Report and Recommendation without de novo review and grants plaintiffs motion 14 for default judgment as to the defendant Noisette Caf, only. Since the Report and Recommendation as to defendant Steinway has responded. In fact, on October 6, 2016, defendant Steinway and plaintiff submitted a joint stipulation in which the latter formally withdrew his motio n against the former and agreed to treat any prospective answer as timely. Accordingly, this Court declines to adopt the Report and Recommendation as to defendant Steinway and, with plaintiffs acquiescence, will deny his motion for default judgment as to defendant Steinway. Ordered by Judge Frederic Block on 1/3/2017. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JERRY CANKAT,
Plaintiff,
-against-

MEMORANDUM AND ORDER
15-cv-4730 (FB) (SMG)

NOISETTE CAFÉ INC., and 24-21
STEINWAY STREET REALTY CORP.,
Defendants.
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Appearances:
For Plaintiff:
W. MARILYNN PIERRE
W. Marilynn Pierre, Esq., LMSW
535 5th Avenue, 4th Floor
New York, New York 10017

For Defendant 24-21 Steinway Street
Realty Corp.:
KATIE L. BIRELEY
31-10 37th Avenue, Suite 500
Long Island City, New York 11101

TARA DEMETRIADES
1076 Wolver Hollow Road
Oyster Bay, New York 11771
BLOCK, Senior District Judge:
On September 27, 2016, Magistrate Judge Steven M. Gold (“MJ”) issued a
Report and Recommendation (“R&R”) recommending that plaintiff’s Motion for
Default Judgment against both Noisette Café Inc. (“Café”) and 24-21 Steinway Street
Realty Corp. (“Steinway”) (collectively, “defendants”) be granted.

The R&R was

docketed on September 27, 2016. To date, no objection from the Café has been filed,
and more than thirty-five days have passed.
Where 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.”). This
Court, however, will 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). No such error appears here. Accordingly, as
to Café only, the Court adopts the R&R without de novo review and grants plaintiff’s
Motion for Default Judgment.
However, since the R&R, Steinway has responded. In fact, on October 6, 2016,
Steinway and plaintiff submitted a joint stipulation in which the latter formally
withdrew his motion against the former and agreed to treat any prospective answer as
timely. Accordingly, this Court declines to adopt the R&R as to Steinway and, with
plaintiff’s acquiescence, will deny his Motion for Default Judgment as to this defendant.

SO ORDERED.
/S/ Frederic Block________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
January 3, 2017

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