Bahnsen v. The Town of Brookhaven

Filing 54

ORDER ADOPTING REPORT AND RECOMMENDATIONS - For the reasons set forth above, the Report is accepted in its entirety and, for the reasons set forth therein, defendants motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Proce dure is granted and defendant is granted judgment as a matter of law dismissing plaintiffs claims against it in their entirety with prejudice. The Clerk of the Court shall enter judgment in accordance with this Order and close this case. SO Ordered by Judge Sandra J. Feuerstein on 1/3/2020. (Tirado, Chelsea)

FILED 
CLERK 

4:55 pm, Jan 03, 2020

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

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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WILLIAM BAHNSEN,
Plaintiff,

ORDER
17-CV-4545 (SJF)(AYS)

-againstTOWN OF BROOKHAVEN,
Defendant.
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FEUERSTEIN, District Judge:

Pending before the Court is the Report and Recommendation of the Honorable Anne Y.
Shields, United States Magistrate Judge, dated December 16, 2019 (“the Report”), (1)
recommending that the motion of defendant Town of Brookhaven (“defendant”) for summary
judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure be granted; and (2)
advising, inter alia, (a) that “[a]ny written objections to th[e] Report . . . must be filed . . . within
fourteen (14) days of filing of th[e] [R]eport,” (Report at 25) (citing 28 U.S.C. § 636(b)(1) and
Fed. R. Civ. P. 6(a), 72(b)), and (b) that “[f]ailure to file objections within fourteen (14) days
will preclude further review of th[e] [R]eport . . . either by the District Court or Court of
Appeals.” (Id.) (citing Thomas v. Arn, 474 U.S. 140, 145, 106 S. Ct. 466, 88 L. Ed. 2d 435
(1985) and Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008)). A copy of the Report
was served upon both parties via ECF on December 16, 2019. (See Docket Entry [“DE”] 53).
Neither party has filed any timely objections to the Report, nor sought an extension of time to do
so. For the reasons set forth below, the Report is accepted in its entirety.

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I.

Standard of Review
Any party may serve and file written objections to a report and recommendation of a

magistrate judge on a dispositive matter within fourteen (14) days after being served with a copy
thereof. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Any portion of such a report and
recommendation to which a timely objection has been made is reviewed de novo. 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72(b)(3). The court, however, is not required to review the factual
findings or legal conclusions of the magistrate judge as to which no proper objections are
interposed. See Thomas, 474 U.S. at 150, 106 S. Ct. 466. Where a party “received clear notice of
the consequences of the failure to object” to a report and recommendation on a dispositive
matter, Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992) (quotations and citation omitted);
accord Mario v. P&C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002); Small v. Sec’y of
Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989), his “failure to object timely to [that]
report waives any further judicial review of the report.” Frank, 968 F.2d at 16; see also Smith v.
Campbell, 782 F.3d 93, 102 (2d Cir. 2015); Caidor, 517 F.3d at 604.
Nonetheless, the waiver rule is non-jurisdictional and, thus, the Court may excuse a
violation thereof “in the interests of justice.” Neita v. Precision Pipeline Sols., 768 F. App’x 12,
14 (2d Cir. Apr. 29, 2019) (summary order) (citing United States v. Male Juvenile (95-CR-1074),
121 F.3d 34, 39 (2d Cir. 1997)); see also DeLeon v. Strack, 234 F.3d 84, 86 (2d Cir. 2000).
“Such discretion is exercised based on, among other factors, whether the defaulted argument has
substantial merit or, put otherwise, whether the magistrate judge committed plain error in ruling
against the defaulting party.” Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d
162, 174 (2d Cir. 2000); accord Neita, 768 F. App’x at 14.

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II.

Review of Report
Since neither party has filed any timely objections to the Report, nor sought an extension

of time to do so, they have “waive[d] any further judicial review of the findings contained in the
[R]eport.” Spence, 219 F.3d at 174. As the Report is not plainly erroneous, the Court will not
exercise its discretion to excuse the parties’ default in filing timely objections to the Report in the
interests of justice. Accordingly, the Report is accepted in its entirety.

III.

Conclusion
For the reasons set forth above, the Report is accepted in its entirety and, for the reasons

set forth therein, defendant’s motion for summary judgment pursuant to Rule 56 of the Federal
Rules of Civil Procedure is granted and defendant is granted judgment as a matter of law
dismissing plaintiff’s claims against it in their entirety with prejudice. The Clerk of the Court
shall enter judgment in accordance with this Order and close this case.
SO ORDERED.
___/s/ Sandra J. Feuerstein____
SANDRA J. FEUERSTEIN
United States District Judge
Dated: January 3, 2020
Central Islip, New York

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