PHL Variable Insurance Company v. Bimbo

Filing 21

MEMORANDUM and ORDER ADOPTING REPORT AND RECOMMENDATION: No error, plain or otherwise, appears on the face of the Report and Recommendation 19 . Therefore, the Court adopts it without de novo review. Accordingly, the Clerk shall enter a judgment declaring the policy void and authorizing PHL to deposit the premiums paid with the Clerks office. Ordered by Judge Frederic Block on 9/28/2018. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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PHL VARIABLE INSURANCE
COMPANY,
Plaintiff,
-against-

MEMORANDUM AND ORDER
Case No. 17-CV-1290 (FB) (ST)

MICHAEL T. BIMBO
Defendant.
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BLOCK, Senior District Judge:
Magistrate Judge Tiscione issued a Report and Recommendation (“R&R”)
recommending that Plaintiff’s Motion for Default Judgment be granted in part.
Specifically, the R&R recommended that “Plaintiff should receive a declaration that
the insurance policy issued to Defendant is void ab initio” and that Plaintiff should be
granted leave “to deposit the premiums paid with the clerk of the court,” but that
plaintiff should not receive attorney’s fees or costs. R&R at 7. The R&R advised that
objections were due within 14 days from service of the R&R and warned that
“[f]ailure to file timely objections shall constitute a waiver of those objections both
in the District Court and on later appeal to the United States Court of Appeals.” R&R
at 7. The R&R was served on the defendant at his last known address on September
13, 2018, making objections due by September 27, 2018. To date, no objections have

been filed.
Where clear notice has been given of the consequences of failure to object, and
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.”). The Court will,
however, excuse the failure to object and 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 error, plain or otherwise, appears on the face of the R&R. Therefore, the
Court adopts it without de novo review. Accordingly, the Clerk shall enter a judgment
declaring the policy void and authorizing PHL to deposit the premiums paid with the
Clerk’s office.
SO ORDERED.

/S/ Frederic Block___________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
September 28, 2018

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