Boston Restaurant Associates, Inc. v. Lorito et al

Filing 50

MEMORANDUM and ORDER ADOPTING REPORT AND RECOMMENDATION: No such error appears on the face of the Report and Recommendation 48 . Therefore, the Court adopts it in its entirety without de novo review. The Clerk shall enter judgment in accordance with the Report and Recommendation. Ordered by Judge Frederic Block on 12/3/2018. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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BOSTON RESTAURANT ASSOCIATES,
INC.,
Plaintiff,
-againstMICHAEL WARD and REGINA’S
FAMILY PIZZA INC. d/b/a REGINA
CAFE & PIZZERIA,

MEMORANDUM AND ORDER
Case No. 17-CV-5557-FB-RML

Defendants.
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BLOCK, Senior District Judge:
On August 1, 2018, Magistrate Judge Levy issued a Report and
Recommendation (“R&R”) recommending that plaintiff’s Motion for Default
Judgment be denied. The R&R advised that “[a]ny objections to this Report and
Recommendation must be filed . . . within fourteen (14) days,” and that “[f]ailure to
file objections within the specified time waives the right to appeal the district court’s
order.” R&R at 16. The R&R was served on all defendants at their last known
address on August 1, 2018, making objections due by August 15, 2018.1 To date,
no objections have been filed.

1

On September 26, 2018, the notice mailed to defendant Michael Ward, Chief
Executive Officer of Regina’s Family Pizza Inc. d/b/a Regina Café & Pizzeria was

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, however, will 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 such error appears on the face of the R&R. Therefore, the Court adopts it
without de novo review and denies plaintiff’s Motion for Default Judgment. The
Clerk shall dismiss this action without prejudice.
SO ORDERED.

_/S/ Frederic Block________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
December 3, 2018 

returned to sender as undeliverable. Given the outcome of the case, however, there
is no prejudice against defendants here.