Piccolo v. D.A.L.T. Malloy LLC et al

Filing 22

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATION; Judge Lindsay's R&R (Docket Entry 19) is ADOPTED in its entirety. The Clerk of the Court is directed to VACATE the entry of default judgment against Defendants. Plaintiff is directed to serve a copy of this Memorandum & Order on Defendants and file proof of service on ECF. So Ordered by Judge Joanna Seybert on 3/8/2016. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------X
ELAINE PICCOLO,
Plaintiff,
-against-

MEMORANDUM & ORDER
14-CV-6312(JS)(ARL)

D.A.L.T. MALLOY LLC and
NICHOLE STARR,

Defendants.
----------------------------------X
APPEARANCES
For Plaintiff:
Darren Arthur Aronow, Esq.
The Law Office of Darren Aronow, P.C.
8b Commercial Street, Suite 1
Hicksville, NY 11801
For Defendants:

No appearance

SEYBERT, District Judge:
Pending before the Court is Magistrate Judge Arlene R.
Lindsay’s Report and Recommendation (“R&R”), recommending that
this Court deny plaintiff Elaine Piccolo’s (“Plaintiff”) motions
for default judgment (Docket Entries 13 and 17). For the following
reasons, the Court ADOPTS Judge Lindsay’s R&R in its entirety.
BACKGROUND
This action was commenced on October 28, 2014 against
defendants D.A.L.T. Malloy LLC (“D.A.L.T.”) and Nichole Starr
(“Starr” and collectively, “Defendants”).
Defendants

violated

the

Fair

Debt

Plaintiff alleges that

Collection

Practices

Act,

15 U.S.C. § 1692, et. seq., and state law in connection with the
collection of a consumer debt.

(See Compl. Docket Entry 1.)

On June 24, 2015, Plaintiff moved for the entry of a
default judgment against Defendants.

(Docket Entry 13.)

On

July 1, 2015, Plaintiff filed a motion to supplement her motion
for default judgment (Docket Entry 17).
On July 2, 2015, the undersigned referred Plaintiff’s
motions to Judge Lindsay for an R&R on whether the motions should
be granted.

(Docket Entry 18.)

On
(Docket

January

Entry

19.)

8,

2016,

The

R&R

Judge

Lindsay

recommends

Plaintiff’s motion for default judgment.

issued

that

the

her

R&R.

Court

deny

(R&R at 6-7.)

The R&R

further recommends that the Court sua sponte vacate the entry of
default against D.A.L.T. and Starr.

(R&R at 6-7.)

The Court’s Electronic Order dated January 29, 2016
directed Plaintiff to serve a copy of the R&R on Defendants and
file proof of service on ECF on or before February 9, 2016.
February

9,

indicating

2016,
that

Plaintiff

D.A.L.T.’s

January 14, 2016.

filed

an

registered

(Docket Entry 20.)

Affidavit
agent

of

was

On

Service

served

on

However, Plaintiff has

failed to file proof of service that the R&R was served on Starr.
DISCUSSION
In reviewing an R&R, a district court “may accept,
reject,

or

modify,

recommendations

made

in
by

whole
the

or

in

part,

magistrate

the

judge.”

findings
28

and

U.S.C.

§ 636(b)(1)(C). If no timely objections have been made, the “court
2

need only satisfy itself that there is no clear error on the face
of the record.”

Urena v. New York, 160 F. Supp. 2d 606, 609-10

(S.D.N.Y. 2001) (internal quotation marks and citation omitted).
As set forth above, Plaintiff failed to file proof of
service that Starr was served with the R&R in accordance with both
the

R&R

and

the

Court’s

Electronic

Order.

Parenthetically,

Plaintiff’s apparent failure to serve Starr lends further support
to Judge Lindsay’s recommendation that the Court decline to enter
a default judgment and vacate the Clerk’s entry of default against
Starr. The Court sees no need to delay in adopting Judge Lindsay’s
R&R to permit Plaintiff to effectuate service of the R&R in light
of the Court’s denial of Plaintiff’s motions and the absence of
any prejudice to Starr.

As set forth below, Plaintiff is directed

to serve a copy of this Memorandum & Order on both D.A.L.T. and
Starr and file proof of service on ECF.
Objections were due within fourteen days of service of
the R&R.

The time for filing objections has expired, and neither

Plaintiff nor D.A.L.T. has objected.

Accordingly, all objections

are hereby deemed to have been waived.
Upon careful review and consideration, the Court finds
Judge Lindsay’s R&R to be comprehensive, well-reasoned, and free
of clear error, and it ADOPTS the R&R in its entirety.

3

CONCLUSION
Judge Lindsay’s R&R (Docket Entry 19) is ADOPTED in its
entirety.

The Clerk of the Court is directed to VACATE the entry

of default judgment against Defendants.

Plaintiff is directed to

serve a copy of this Memorandum & Order on Defendants and file
proof of service on ECF.

SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

March
8 , 2016
Central Islip, New York

4