Tuccio v. U.S. Security Associates Inc.

Filing 105

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Having conducted a de novo review of the R&R, and having considered the parties' additional submissions, the Court again adopts the R&R, recommending that defendant's motion for summary judgment be granted, in its entirety. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith; therefore, in forma pauperis status is denied for purposes of an appeal. SO ORDERED. Ordered by Judge Joseph F. Bianco on 4/17/2013. (Samplin, Ilissa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 10-cv-1714 (JFB)(GRB)
_____________________

SAMUEL TUCCIO,
Plaintiff,
VERSUS

U.S. SECURITY ASSOCIATES INC.,
Defendant.
___________________
ORDER ADOPTING REPORT AND RECOMMENDATION
April 17, 2013
___________________

JOSEPH F. BIANCO, District Judge:
Pro se plaintiff Samuel Tuccio
(“plaintiff” or “Tuccio”) brought this action
against U.S. Security Associates Inc.
(“defendant”), alleging race discrimination
in violation of Title VII of the Civil Rights
Act of 1964 (“Title VII”) and the New York
State Human Rights Law (“NYSHRL”),
N.Y. Exec. L. § 290 et seq. Defendant
subsequently filed a motion for summary
judgment pursuant to Rule 56 of the Federal
Rules of Civil Procedure.
On February 27, 2013, Magistrate Judge
Brown
issued
a
Report
and
Recommendation (“R&R”), recommending
that defendant’s motion for summary
judgment be granted in its entirety. By Order
dated March 18, 2013, this Court adopted
the R&R in its entirety, thereby granting
defendant’s motion for summary judgment

and directing the Clerk of the Court to enter
judgment accordingly and close this case.
After the Court issued its March 18,
2013 Order adopting the R&R, however, it
received plaintiff’s objections to the R&R.
By Order dated March 20, 2013, the Court
informed the parties that it would consider
plaintiff’s written objections. The Court also
provided defendant with an opportunity to
respond to plaintiff’s objections. Defendant
subsequently filed a letter with the Court,
dated April 4, 2013, responding to plaintiff’s
objections
to
the
R&R.
Thus,
notwithstanding the March 18, 2013 Order,
the Court is considering the matter de novo.
For the reasons that follow, having
considered the parties’ submissions, as well
as having reviewed the entire R&R de novo
(with plaintiff’s objections), the Court
adopts Judge Brown’s thorough and wellreasoned R&R in its entirety.

dated March 20, 2013, the Court informed
the parties that it would consider plaintiff’s
objections. The Court also directed
defendant to respond to plaintiff’s
objections, if it wished to do so, no later
than April 4, 2013. By letter dated April 4,
2013, defendant responded to plaintiff’s
objections. The Court has fully considered
the parties’ submissions de novo.

I. PROCEDURAL HISTORY
Plaintiff filed his complaint on April 14,
2010. On July 8, 2010, defendant filed a
motion to dismiss the complaint. Plaintiff
filed an opposition to defendant’s motion to
dismiss on August 9, 2010, and defendant
filed a reply in further support of its motion
on August 23, 2010. On February 8, 2011,
the Court held oral argument on defendant’s
motion and orally denied defendant’s
motion to dismiss the complaint. The case
proceeded to discovery under the direction
and Magistrate Judge Lindsay, and
defendant filed an answer to the complaint
on February 18, 2011. On November 18,
2011, Magistrate Judge Brown was added to
the case and, from that point on, handled
discovery.

II. STANDARD OF REVIEW
A district judge may accept, reject, or
modify, in whole or in part, the findings and
recommendations of the Magistrate Judge.
See DeLuca v. Lord, 858 F. Supp. 1330,
1345 (S.D.N.Y. 1994); Walker v. Hood, 679
F. Supp. 372, 374 (S.D.N.Y. 1988). As to
those portions of a report to which no
“specific written objection” is made, the
Court may accept the findings contained
therein, as long as the factual and legal bases
supporting the findings are not clearly
erroneous. Santana v. United States, 476 F.
Supp. 2d 300, 302 (S.D.N.Y. 2007); Greene
v. WCI Holdings Corp., 956 F. Supp. 509,
513 (S.D.N.Y. 1997). When “a party
submits a timely objection to a report and
recommendation, the district judge will
review the parts of the report and
recommendation to which the party objected
under a de novo standard of review.” Jeffries
v. Verizon, 10-CV-2686 (JFB)(AKT), 2012
WL 4344188, at *1 (E.D.N.Y. Sept. 21,
2012); see also 28 U.S.C. § 636(b)(1)(C)
(“A judge of the court shall make a de novo
determination of those portions of the report
or specified proposed findings or
recommendations to which objection is
made.”); Fed. R. Civ. P. 72(b)(3) (“The
district judge must determine de novo any
part of the magistrate judge’s disposition
that has been properly objected to. The
district judge may accept, reject, or modify
the recommended disposition; receive
further evidence; or return the matter to the
magistrate judge with instructions.”).

On May 15, 2012, defendant filed a
motion for summary judgment, pursuant to
Rule 56 of the Federal Rules of Civil
Procedure. Plaintiff filed a declaration in
opposition to defendant’s motion on June
15, 2012, and defendant filed a reply in
further support of its motion for summary
judgment on June 29, 2012. By Order dated
October 16, 2012, the Court referred the
motion for summary judgment to Magistrate
Judge Brown for a Report and
Recommendation.
On February 27, 2013, Magistrate Judge
Brown issued an R&R, recommending that
defendant’s motion for summary judgment
be granted in its entirety. By Order dated
March 18, 2013, this Court adopted
Magistrate Judge Brown’s R&R in its
entirety, thereby granting defendant’s
motion for summary judgment and directing
the Clerk of Court to enter judgment
accordingly and close the case.
The Court received plaintiff’s objections
to the R&R one day after it issued its Order
adopting the R&R. Accordingly, by Order
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be granted, in its entirety. The Court
certifies, pursuant to 28 U.S.C. § 1915(a)(3),
that any appeal from this Order would not be
taken in good faith; therefore, in forma
pauperis status is denied for purposes of an
appeal. See Coppedge v. United States, 369
U.S. 438, 444-45 (1962).

III. PLAINTIFF’S OBJECTIONS
Plaintiff objects to the R&R with respect
to its recommendation that the Court grant
defendant’s motion for summary judgment
pursuant to Rule 56 of the Federal Rules of
Civil Procedure because (1) plaintiff did not
establish a prima facie case that the
defendant discriminated against him based
on race, and (2) in any event, defendant
provided a legitimate, non-pretextual reason
for plaintiff’s termination and plaintiff failed
to set forth any evidence to rebut
defendant’s basis for the termination.

SO ORDERED.

______________________
JOSEPH F. BIANCO
United States District Judge

Plaintiff claims that the R&R is
“arbitrary and capricious.” (See Pl.’s
Objections at 1.) However, plaintiff does not
point to any evidence which undermines the
factual or legal conclusions reached by
Magistrate Judge Brown in his R&R.
Instead, plaintiff calls the Court’s attention
to a host of exhibits that do not serve to
further his position in this case. As
Magistrate Judge Brown correctly concluded
after a thorough review of the record,
plaintiff has set forth no evidence that his
removal from the North Shore LIJ Complex
was motivated by his race; rather, the
uncontroverted evidence demonstrates that
plaintiff was terminated because of the
February 2, 2009 parking garage incident. In
short, given the uncontroverted facts in the
record, no rational jury could find that the
termination was motivated by race.

Dated: April 17, 2013
Central Islip, NY
***
The plaintiff proceeds pro se. Defendant is
represented by Elana Gilaad and Philip K.
Davidoff of Ford & Harrison LLP, 100 Park
Avenue, Suite 2500, New York, N.Y.
10017.

The Court has conducted a de novo the
R&R in its entirety, and it adopts the R&R
in all respects.
IV. CONCLUSION
Having conducted a de novo review of
the R&R, and having considered the parties’
additional submissions, the Court again
adopts the R&R, recommending that
defendant’s motion for summary judgment
3