Badalamenti v. Country Imported Car Corp. et al

Filing 30

ORDER ADOPTING REPORT AND RECOMMENDATIONS ; adopting Report and Recommendations as to 29 Report and Recommendations.; denying 8 Motion to Dismiss. The Court accepts Magistrate Judge Wall's Report in its entirety. The Fund Defendants' motino to dismiss the complaint is denied for the reasons set forth in the Report. SO ORDERED. Ordered by Judge Sandra J. Feuerstein on 9/28/2011. (Brienza, Lauren)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

-----------------------------------

X

JOHN BADALAMENTI,
Plaintiff,

ORDER
CV-10-4993(SJF)(WDW)

-againstCOUNTRY IMPORTED CAR CORP. d/b/a
BMW OF THE HAMPTONS AND MINI OF THE
HAMPTONS, LOCAL 210 UNITY WELFARE FUND,
TRUSTEES OF LOCAL 210 WELFARE FUND,
DOMINICK FORMISANO, as Plan Administrator of
Unity Welfare Fund, MICHAEL CARUSO and
VINCENT CARUSO,

FILEr)
IN CLERK'S o•-;clCE
US. DISTRICT COURT E.D.N.Y

*

SEP 2 8 2011

*

LONG ISLAND OFFICE

Defendants.

-----------------------------------X
FEUERSTEIN, J.
Pending before the Court is the Report and Recommendation ("the Report") of Magistrate
Judge William D. Wall, dated August 30, 2011, recommending that the motion of defendants Local
210 Unity Welfare Fund, Trustees ofLocal210 Welfare Fund and Dominick Formisano, as plan
administrator ofthe Unity Welfare Fund (collectively, "the Fund defendants") to dismiss the
complaint pursuant to Rule 12(b)(6) ofthe Federal Rules of Civil Procedure be denied. No
objections have been filed to the Report. For the reasons stated herein, the Court accepts
Magistrate Judge Wall's Report in its entirety.

I

Any portion of a report and recommendation on dispositive matters, to which a timely
objection has been made, is reviewed de novo. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The
court, however, is not required to review the factual findings or legal conclusions of the magistrate
judge as to which no proper objections are interposed. See, Thomas v. Am, 474 U.S. 140, 150,

106 S.Ct. 466, 88 L.Ed.2d 435 (1985). To accept the report and recommendation of a magistrate
judge on a dispositive matter, to which no timely objection has been made, the district judge need
only be satisfied that there is no clear error on the face of the record. See, Fed. R. Civ. P. 72(b);
Johnson v. Goord, 487 F.Supp.2d 377, 379 (S.D.N.Y. 2007), affd, 305 Fed. Appx. 815 (2d Cir.
Jan. 1, 2009); Baptichon v. Nevada State Bank, 304 F.Supp.2d 451,453 (E.D.N.Y. 2004), affd,
125 Fed.Appx. 374 (2d Cir. 2005). Whether or not proper objections have been filed, the district
judge may, after review, accept, reject, or modify any of the magistrate judge's findings or
recommendations. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b).
II

No party has filed any objections to Magistrate Judge Wall's Report. Upon review, the
Court is satisfied that the Report is not facially erroneous. Accordingly, the Court accepts
Magistrate Judge Wall's Report in its entirety. The Fund defendants' motion to dismiss the
complaint pursuant to Rule 12(b)(6) ofthe Federal Rules of Civil Procedure is denied for the
reasons set forth in the Report.

SO ORDERED.

I'

v

SANDRA J. FEUERSTEIN
United States District Judge
Dated: September 28, 2011
Central Islip, New York