Burton et al v. Gagliano et al

Filing 55

ORDER ADOPTING REPORT AND RECOMMENDATIONS ("R&R"). The Court has reviewed the unopposed R&R and, finding no clear error, the Court adopts Judge Tomlinson's R&R in its entirety pursuant to 28 U.S.C. § 636(b)(1). Defendants' motion for summary judgment is granted, and the Court dismisses Plaintiffs' state law claims without prejudice. Ordered by Judge Margo K. Brodie on 8/16/2016. (Haji, Sara)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------TREVOR BURTON, EMILY BURTON,
AZ TRANSIT CONTRACTING CORP.,
DOUGLAS R. SHERMAN and SARI M.
SUNSHINE,

MEMORANDUM & ORDER
10-CV-5821 (MKB) (AKT)

Plaintiffs,
v.
FRANK GAGLIANO, individually and as Chief
Building Inspector for the Incorporated Village of
East Hills, BUILDING DEPARTMENT of the
Incorporated Village of East Hills, BARRY LAMB,
Deputy Code Enforcement Officer/Building
Inspector of the Incorporated Village of East Hills,
MICHAEL R. KOBLENTZ, Mayor of the
Incorporated Village of East Hills, EMANUEL
ZUCKERMAN, Deputy Mayor of the Incorporated
Village of East Hills and the INCORPORATED
VILLAGE OF EAST HILLS,
Defendants.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
On December 15, 2010, Plaintiffs Trevor Burton, Emily Burton, AZ Transit Contracting
Corporation, Douglas R. Sherman and Sari M. Sunshine commenced the above-captioned action
against Defendants Frank Gagliano, Barry Lamb, Michael R. Koblentz, Emanuel, Zuckerman,
the Incorporated Village of East Hills and the Building Department of the Incorporated Village
of East Hills. (Compl., Docket Entry No. 1.) After amending the Complaint, Plaintiffs alleged
two federal causes of action pursuant to 42 U.S.C. § 1983 and five state law causes of action for

intentional interference with a contract, prima facie tort, negligence, nuisance and trespass.1
(Am. Compl., Docket Entry No. 16.) Plaintiffs claim that Defendants violated their due process
rights when they revoked certain building permits and issued stop-work orders on a property in
the Village of East Hills. (Id. ¶¶ 40–43.)
Defendants moved for summary judgment as to all claims pursuant to Rule 56 of the
Federal Rules of Civil Procedure. (Defs. Notice of Mot. for Summ. J., Docket Entry No. 35.)
The motion was referred to Magistrate Judge A. Kathleen Tomlinson on October 28, 2015. (See
Order dated Oct. 28, 2015.) By report and recommendation dated July 21, 2016 (the “R&R”),
Judge Tomlinson recommended that the Court grant Defendants’ motion for summary judgment
and decline to exercise supplemental jurisdiction over Plaintiffs’ state law claims.2 (R&R 38,
Docket Entry No. 54.) No party has objected to the R&R.

1

At a pre-motion conference on March 6, 2015, Plaintiffs withdrew an equal protection
claim. (See Minute Entry dated March 6, 2015.)
2

Contrary to Plaintiffs’ argument that the statute of limitations period for several of his
state law claims has expired, 28 U.S.C. § 1367(d) provides that “[t]he period of limitations for
any claim asserted under [supplemental jurisdiction] . . . shall be tolled while the claim is
pending and for a period of 30 days after it is dismissed unless State law provides for a longer
tolling period.” 28 U.S.C. § 1367; see Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240,
250 (2d Cir. 2008) (“The dismissal will not have any impact on the statute of limitations for
these claims, because, pursuant to 28 U.S.C. § 1367(d), the limitations period is tolled while the
claims are pending and for 30 days after they are dismissed.”); Bjorlin v. MacArthur Equities
Ltd., No.11-CV-00558, 2015 WL 403212, at *4 (D. Conn. Jan. 28, 2015). Moreover, New York
Civil Practice Rule 205(a) extends the tolling period to six months where the first action was
timely commenced and was “terminated in any other manner than by a voluntary discontinuance,
a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for
failure to prosecute the action, or a final judgment upon the merits.” C.P.L.R. § 205(a); see
Murphy v. Flagstar Bank, No. 10-CV-0645, 2011 WL 4566139, at *3 (N.D.N.Y. Sept. 29, 2011)
(explaining that section 205(a) “permits a party to re-file a claim in state court that was timely
filed in federal court”); Dallas v. Roosevelt Union Free Sch. Dist., 644 F. Supp. 2d 287, 296
(E.D.N.Y. 2009); see also Healy v. City of N.Y. Dep’t of Sanitation, 286 F. App’x 744, 746–47
(2d Cir. 2008) (“The district court should dismiss this claim without prejudice so that Healy can
seek to pursue it in state court . . . .”).
2

A district court reviewing a magistrate judge’s recommended ruling “may accept, reject,
or modify, in whole or in part, the findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1)(C). “[F]ailure to object timely to a magistrate judge’s report may operate
as a waiver of any further judicial review of the decision, as long as the parties receive clear
notice of the consequences of their failure to object.” Eustache v. Home Depot U.S.A., Inc.,
621 F. App’x 86, 87 (2d Cir. 2015) (quoting United States v. Male Juvenile, 121 F.3d 34, 38
(2d Cir. 1997)); see also Almonte v. Suffolk Cty., 531 F. App’x 107, 109 (2d Cir. 2013) (“As a
rule, a party’s failure to object to any purported error or omission in a magistrate judge’s report
waives further judicial review of the point.” (quoting Cephas v. Nash, 328 F.3d 98, 107 (2d Cir.
2003))); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile,
P.C., 596 F.3d 84, 92 (2d Cir. 2010) (“[A] party waives appellate review of a decision in a
magistrate judge’s Report and Recommendation if the party fails to file timely objections
designating the particular issue.” (first citing Cephas, 328 F.3d at 107; and then citing Mario v.
P & C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002))).
The Court has reviewed the unopposed R&R and, finding no clear error, the Court adopts
Judge Tomlinson’s R&R in its entirety pursuant to 28 U.S.C. § 636(b)(1). Defendants’ motion
for summary judgment is granted, and the Court dismisses Plaintiffs’ state law claims without
prejudice.
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: August 16, 2016
Brooklyn, New York

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