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

Filing 34

ORDER ADOPTING REPORT AND RECOMMENDATIONS : IT IS HEREBY ORDERED that plaintiff's motion for damages (ECF No. 24) is granted. IT IS FURTHER ORDERED that plaintiff is awarded damages in the total amount of $86,597.27, plus per diem pre-judgm ent interest at a rate of $12.59 from February 16, 2012, until thedate of this Order. IT IS FURTHER ORDERED that plaintiff shall serve a copy of this Order on defendant and file proof of service with the CourtOrdered by Judge Joseph F. Bianco on 3/19/2019. (Bollbach, Jean)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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MANUEL ZHISPON,

Plaintiff,
-against-

FILED

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~N CLEt·<f<-'S OFFICE
U.S. OISTRLC r GOUR: EO.N.Y.

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MAR l<l 2G19

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LONG ISLAND OFF\CE
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 27, 2019, Magistrate Judge Gary R. Brown issued a Report and
Recommendation (the "R&R"), recommending that the Court grant plaintiffs motion money
damages and award damages in the total amount of $86,597.27, as well as pre-judgment interest at a
rate of $12.59 per diem from February 16, 2012 until the date of this Order. The R&R was served
on defendant Strong Construction of New York Corp. ("defendant") on February 28, 2019. (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, grants plaintiff's motion for damages, and awards plaintiff damages in the total amount of
$86,597.27 (consisting of $51,048.48 in principal damages, $33,048.79 in liquidated damages, and
$2,500 in statutory damages), plus pre-judgment interest at a rate of $12.59 per diem from February
16, 2012 until the date 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 ofthe 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)(l)(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)).
No party has objected to the R&R. Having conducted a review of the full record and the
applicable law, and having reviewed the R&R for clear error, 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. 24) is granted.
IT IS FURTHER ORDERED that plaintiff is awarded damages in the total amount of
$86,597.27, plus per diem pre-judgment interest at a rate of $12.59 from February 16, 2012, until the
date of this Order.
IT IS FURTHER ORDERED that plaintiff shall serve a copy of this Order on defendant and
file proof of service with the Court.

So5'o~n.

r

SI JOSEPH F BIANCO
/0,BEPH F. BIANCO
t:!,NITED STATES DISTRICT JUDGE
Dated:

\.i_,

March
2019
Central Islip, New York

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