Purcell v. New York Institute of Technology-College of Osteopathic Medicine

Filing 27

ORDER ADOPTING REPORT AND RECOMMENDATIONS: For the reasons stated (PLEASE SEE ORDER FOR FURTHER DETAILS), I overrule the parties' objections and adopt Judge Tomlinson's recommendations. Accordingly, plaintiff's 2013-14 claims are dismi ssed, while plaintiff's 2010-11 claims may continue. A telephone status conference is hereby scheduled for September 26, 2017 at 11:30 AM. Plaintiff's counsel is directed to initiate the conference call and contact Chambers at 718-613-2530 when all parties are on the line. Any requests for adjournment must be made via letter filed on ECF at least two days in advance of the scheduled conference and must indicate which parties consent to the adjournment. So Ordered by Judge Joan M. Azrack on 9/18/2017. (Ortiz, Grisel)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------------------X
JOHN PURCELL,

For Online Publication Only
ORDER
16–CV–3555 (JMA) (AKT)

Plaintiff,
v.

NEW YORK INSTITUTE OF TECHNOLOGYCOLLEGE OF OSTEOPATHIC MEDICINE,
Defendant.
-------------------------------------------------------------------X

FILED 
CLERK 

9/18/2017 12:15 pm

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

AZRACK, United States District Judge:
Before the Court are both parties’ objections to Magistrate Judge A. Kathleen Tomlinson’s
Report and Recommendation dated August 4, 2017 (the “R&R”). In the R&R, Judge Tomlinson
recommended that defendant’s motion to dismiss be granted in part and denied in part. In
particular, Judge Tomlinson recommended that this Court: (1) grant defendant’s motion with
regard to plaintiff’s claims involving discrimination and retaliation that occurred during the
disciplinary process (the “2013–14 claims”); and (2) deny defendant’s motion with regard to
plaintiff’s claims involving discrimination that occurred prior to the disciplinary process (the
“2010–11 claims”). Having conducted a review of the full record and applicable law, for the
following reasons, the Court adopts Judge Tomlinson’s R&R in its entirety, as the opinion of the
Court.
I. STANDARD OF REVIEW
In reviewing a magistrate judge’s report and recommendation, a court must “make a de
novo determination of those portions of the report or . . . recommendations to which objection[s]
[are] made.” 28 U.S.C. § 636(b)(1)(C); see also Brown v. Ebert, No. 05–CV–5579, 2006 WL

1

3851152, at *2 (S.D.N.Y. Dec. 29, 2006). The court “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).
Those portions of a report and recommendation to which there is no specific reasoned objection
are reviewed for clear error. See Pall Corp. v. Entegris, Inc., 249 F.R.D. 48, 51 (E.D.N.Y. 2008).
II. DISCUSSION
Upon a de novo review, the Court overrules the parties’ objections and adopts Judge
Tomlinson’s recommendations. Each objection is discussed below.
A. Plaintiff’s Objection
Plaintiff objects to the portion of the R&R recommending dismissal of his 2013–14 claims.
Plaintiff argues that his federal claims for discrimination should not be dismissed as time-barred
by Article 78 because “[u]nder the doctrine of preemption, based on the Supremacy Clause, federal
law preempts state law, even when the laws conflict.” (Pl.’s Obj. 5, ECF No. 23.) Furthermore,
plaintiff contends that the authority offered by defendant and relied upon in the R&R only supports
the dismissal of his state law claims. (Id. at 5, 9.)
Plaintiff raises these arguments for the first time in his objection to the R&R. These
arguments were absent from the briefing on the motion before Judge Tomlinson. As she observed,
Plaintiff’s opposition brief [on the motion to dismiss] does little to assist the Court
in distilling the arguments here. Significantly, Plaintiff spent nine pages recounting
the facts, followed by seven pages of “argument” which did little more than repeat
those facts. Indeed, significant portions of the fact section were copied verbatim in
the argument section.
(R&R at 14 n.5 (citations omitted).) Plaintiff only included one sentence in his opposition that
substantively engaged with the authority cited by defendant. In that lone sentence, plaintiff wrote:
“The authority cited by Defendant’s [sic] is distinguishable in that none of the cases contain
discrimination claims alleged under these same statutes and thus are inapplicable to the instant

2

matter,” citing only three of the cases raised in defendant’s motion—Silverman v. N.Y. Univ.
School of Law, 597 N.Y.S.2d 314 (App. Div. 1st Dep’t 1993); Byerly v. Ithaca College, 290 F.
Supp. 2d 301 (N.D.N.Y. 2003); and In the Matter of Flores v. N.Y. Univ., 911 N.Y.S.2d 631 (App.
Div. 1st Dep’t 2010). (Pl.’s Opp’n 17–18, ECF No. 17.) As an initial matter, plaintiff’s singlesentence argument is factually incorrect because several cases that defendant cited in its brief (and
which are mentioned nowhere in plaintiff’s opposition) did involve discrimination claims,
including claims under the New York State Human Rights Law. (See Def.’s Mem. 6–9, ECF No.
16.) More importantly, plaintiff’s single-sentence argument on this issue cannot reasonably be
interpreted as raising the Supremacy Clause argument that he advances, for the first time in his
objection.
The Court will not consider this argument on an objection because it was not properly
presented to the magistrate judge in the underlying motion papers. See Wells Fargo Bank, N.A.
v. Sinnott, No. 07-CV-169, 2010 WL 297830, at *2 (D. Vt. Jan. 19, 2010) (finding the reasoning
of the First, Fifth, Ninth, Tenth, and Eleventh Circuits to be persuasive and concluding that a
district court has the discretion to decline to consider an argument raised for the first time in an
objection to a magistrate judge’s report and recommendation); see also Amadasu v. Ngati, No. 05CV-2585, 2012 WL 3930386, at *5–7 (E.D.N.Y. Sept. 9, 2012) (discussing Well Fargo Bank,
N.A. and exercising discretion to decline to consider new arguments raised after R&R was issued).
This argument having been waived, the Court overrules plaintiff’s objection, adopts Judge
Tomlinson’s recommendation, and dismisses the 2013–14 claims.
B. Defendant’s Objection
Defendant objects to the portion of the R&R recommending that the Court permit
plaintiff’s 2010–11 claims to continue. Defendant objects on two grounds: (1) the 2010–11 claims

3

are barred by the three-year statute of limitations governing federal and New York state
discrimination claims; and (2) the 2010–11 claims are barred by the four-month statute of
limitations governing Article 78 proceedings because these claims challenge defendant’s academic
and administrative decision to dismiss plaintiff. (Def.’s Obj. 2–5, 5–8, ECF No. 22.)
In the R&R, Judge Tomlinson declined to consider defendant’s first argument—the threeyear time bar—because it was raised for the first time in a footnote in defendant’s reply brief.
(R&R at 27.) Judge Tomlinson also declined to consider the issue sua sponte. (Id. at 28.) I find
Judge Tomlinson’s reasoning on these points persuasive and similarly decline to consider this
argument at this time. Defendant may renew this statute of limitations defense at a later date.
On the other hand, Judge Tomlinson expressly rejected defendant’s second argument—the
four-month time bar—in the R&R. (Id. at 27.) Judge Tomlinson recognized that the amended
complaint alleged that plaintiff was subjected to several incidents of discrimination during his
second year of medical school. (Id.) These incidents, however, had “no temporal nexus to the
disciplinary proceedings and resulting decision to dismiss Plaintiff . . . which occurred more than
two years later.” (Id.) Accordingly, Judge Tomlinson concluded that these claims could not be
characterized as a challenge to the disciplinary process or decision to dismiss plaintiff. (Id.) Upon
de novo review, I find this reasoning to be persuasive.
Accordingly, the Court overrules defendant’s objection, adopts Judge Tomlinson’s
recommendation, and declines to dismiss the 2010–11 claims.
III. CONCLUSION
For the reasons stated above, I overrule the parties’ objections and adopt Judge
Tomlinson’s recommendations. Accordingly, plaintiff’s 2013–14 claims are dismissed, while
plaintiff’s 2010–11 claims may continue.

4

A telephone status conference is hereby scheduled for September 26, 2017 at 11:30 AM.
Plaintiff’s counsel is directed to initiate the conference call and contact Chambers at 718-613-2530
when all parties are on the line. Any requests for adjournment must be made via letter filed on
ECF at least two days in advance of the scheduled conference and must indicate which parties
consent to the adjournment.
SO ORDERED.
Dated: September 18, 2017
Central Islip, New York

/s/ (JMA)
JOAN M. AZRACK
UNITED STATES DISTRICT JUDGE

5