Cankat v. Stella's Restaurant Corp. et al

Filing 17

ORDER ADOPTING 14 REPORT AND RECOMMENDATIONS. The court therefore ADOPTS IN FULL Judge Pollak's R&R. Accordingly, the case is DISMISSED WITH PREJUDICE. The Clerk of Court is respectfully DIRECTED to close the case. So Ordered by Judge Nicholas G. Garaufis on 11/7/2016. (fwd'd for jgm) (Lee, Tiffeny)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

Vlf

X

JERRY CANKAT,

ORDER
Plaintiff,

16-CV-1686(NGG)
(CLP)

-againstSTELLA'S RESTAURANT CORP., d.b.a. GYRO UNO,
andARGMARLLC,
Defendants.
X

NICHOLAS G. GARAUFIS,United States District Judge.

Plaintiff Jerry Cankat initiated this action on April 6, 2016, against Defendants Stella's
Restaurant Corp., doing business as Gyro Uno,and Argmar LLC. (Compl.(Dkt. 1).) Plaintiffis

disabled, and he alleges that Defendants have deprived him of equal access to goods and services
in places of public accommodation, in violation ofthe Americans with Disabilities Act("ADA"),
42 U.S.C. §§ 12181 et seq.. and state law. (Id)

On September 21,2016, Magistrate Judge Cheryl L. Pollak issued a sua sponte Report &
Recommendation("R&R")noting that "[t]he case has been pending for several months," and

that "aside from filing and serving the Complaint and moving for entry of default," Plaintiff has
done "nothing more ...to advance the case through discovery or to move for a defaultjudgment
based on defendant's failure to answer." (R&R(Dkt. 14) at 3.) Judge Pollak therefore

recommended "that plaintiffs case be dismissed for failure to prosecute, unless plaintifffiles a

motion for defaultjudgment within 14 days." (Id at 4.) Objections were due within 14 days of
service ofthe R&R. (Id)

Plaintifffailed to move for defaultjudgment or file objections within the 14-day period.
On October 6,2016,one day after the 14-day window had expired. Plaintiffrequested an

1

extension oftime to move for defaultjudgment. (Mot. for Ext. of Time(Dkt. 16).) In light of
the concerns raised in Judge Pollak's R&R,the court deferred ruling on Plaintiffs Motion, and
instead extended Plaintiffs deadline to object to the R&R until October 13, 2016. (Oct. 7,2016,

Order.) Plaintiff once again failed to object to the R&R,and has not sought any additional
extensions oftime.

Because no party has objected to the R&R within the time permitted, the court reviews
the R&R for clear error. See Colon v. Sheahan. No. 13-CV-6744, 2016 WL 3926443, at *3

(S.D.N.Y. July 14,2016); Gesualdi v. Mack Excavation & Trailer Serv.. Inc.. No. 09-CV-2502

(KAM)
(JO),2010 WL 985294, at *1 (E.D.N.Y. Mar. 15,2010h see also Porter v. Potter,
219 F. App'x 112(2d Cir. 2007)(summary order);^28 U.S.C. § 636(b)(1). The court finds no

clear error. Indeed, the case for dismissal is further enhanced by Plaintiffs failure to respond
within the extended timeframe. The court therefore ADOPTS IN FULL Judge PoUak's R&R.
Accordingly, the case is DISMISSED WITH PREJUDICE. The Clerk of Court is respectfully
DIRECTED to close the case.

SO ORDERED.

s/Nicholas G. Garaufis
Dated: Brooklyn, New York

November ^,2016

ItflCHOLAS G. GARAUFIS

United States District Judge