Zhispon v. Strong Construction of New York Corp. et al

Filing 21

ORDER ADOPTING REPORT AND RECOMMENDATIONS: IT IS HEREBY ORDERED that plaintiff's motion for damages (ECF No. 18) is denied. IT IS FURTHER ORDERED that plaintiff is granted leave to submit a renewed motion for damages within forty-five (45) days of this Order, by May 7, 2018. IT IS FURTHER ORDERED that plaintiff shall serve a copy of this Order of defendant and file proof of service with the Court.. Ordered by Judge Joseph F. Bianco on 3/23/2018. (Bollbach, Jean)

FI LED

IN CLERK'S OFFICE
U.S. DISTRICT COURT E.D.N.Y.

UNITED STATES DISTRICT COURT ·
EASTERN DISTRICT OF NEW YORK

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MAR 23 2018

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LONG ISLAND C ~FICE

MANUEL ZHISPON,

Plaintiff,
· -against-

ORDER
15-CV-1475 (JFB)(GRB)

STRONG CONSTRUCTION OF NEW YORK
NEW YORK CORP.,
Defendant.
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JOSEPH F. BIANCO, District Judge:
On February 22, 2018, Magistrate Judge Gary R. Brown issued a Report and
Recommendation (the "R&R"), recommending that the Court deny the motion for damages filed by
plaintiff Manuel Zhispon ("plaintiff'), but grant plaintiff leave to file a renewed motion for damages
with the approp~ate support. The R&R was served on defendant Strong Construction of New York
Corp. ("defendant") on March 2, 2018. (ECF No. 19.) The R&R instructed that any objections to
the R&R be submitted within fourteen ( 14) days of service of the R&R. The date for filing any
objections has thus expired, and no party has filed an objection to the R&R. For the reasons set
forth below, the Court adopts the R&R in its entirety, denies plaintiffs motion for damages, and
grants plaintiff leave to submit a renewed motion for damages within forty-five (45) days of this
Order.
Where there are no objections, the Court may adopt a report and recommendation without de novo
review. See Thomas v. Arn, 474 U.S. 140, 150 (1985) ("It does not appear that Congress intended to
require district court review of a magistrate's factual or legal conclusions, under a de novo or any other
standard, when neither party objects to those findings."); see also 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."); cf 28 U.S.C. § 636(b)(1)(c) and Fed. R. Civ. P. 72(b)(3) (requiring de novo
review after objections). However, because the failure to file timely objections is not jurisdictional, a
district judge may still excuse the failure to object in a timely manner and exercise its discretion to decide
the case on the merits to, for example, prevent plain error. See Cephas v. Nash, 328 F.3d 98, 107 (2d Cir.
2003) ("[B]ecause the waiver rule is non jurisdictional, we 'may excuse the default in the interests of
justice.'" (quoting Thomas, 474 U.S. at 155)).
Although no party has objected to the R&R, the Court has conducted a de novo review of the R&R
in an abundance of caution. Having conducted a review of the full record and the applicable law, and
having reviewed the R&R de novo, the Court adopts the findings and recommendations contained in the
R&R in their entirety. Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion for damages (ECF No. 18) is denied.
IT IS FURTHER ORDERED that plaintiff is granted leave to submit a renewed motion for
damages within forty-five (45) days of this Order, by May 7, 2018.
IT IS FURTHER ORDERED that plaintiff shall serve a copy of this Order of defendant and file
proof of service with the Court.

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ORDERED.

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F. BIANCO
ED STATES DISTRICT JUDGE

Dated:

March 23, 2018
Central Islip, New York

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