Shonowsky v. City of Norwich et al
Filing
26
DECISION AND ORDER adopting Magistrate Judge Peebles' 23 Report and Recommendations; granting Defendants' 5 Motion to Dismiss and dismissing the Complaint. Signed by Senior Judge Thomas J. McAvoy on 9/14/2011. (amt)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
ROGER SHONOWSKY,
Plaintiff,
v.
3:10-cv-745
CITY OF NORWICH, et al.,
Defendants.
_________________________________________
THOMAS J. McAVOY,
Senior United States District Judge
DECISION & ORDER
I.
INTRODUCTION
Plaintiff Roger Shonowsky commenced the instant action pursuant to 42 U.S.C. §
1983 arising out of his arrest and confinement in an inpatient psychiatric facility. In a
Decision and Order dated November 4, 2010, the Court dismissed Plaintiff’s state law
claims as untimely and referred the matter to Magistrate Judge Peebles for an evidentiary
hearing to determine whether the three year statute of limitations applicable to Plaintiff’s
federal claims, which absent tolling would result in dismissal of those claims, should be
tolled under CPLR § 208 during the period of Plaintiff’s involuntary psychiatric
commitment. See 04/11/10 Dec.& Order, dkt. # 13.1 In his Report and Recommendation,
dkt. # 23, Magistrate Judge Peebles reported his conclusions following the evidentiary
1
Fam iliarity with this Decision and Order is presum ed.
1
hearing and recommended that “the court find [that] plaintiff is not entitled to the benefit of
tolling under CPLR § 208 during the period of this psychiatric treatment at the Binghamton
General Hospital.” Id. p. 23. Plaintiff has filed objections to the Report and
Recommendation. Dkt. # 24.
II.
STANDARD OF REVIEW
When objections to a magistrate judge's report and recommendation are lodged,
the district court makes a “de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.” See 28
U.S.C. § 636(b)(1)(C). “[O]bjections to a Report and Recommendation must be specific
and clearly aimed at particular findings in the magistrate's proposal, such that no party be
allowed a second bite at the apple by simply relitigating a prior argument.” Machicote v.
Ercole, 2011 WL 3809920, at * 2 (S.D.N.Y., Aug. 25, 2011)(citations and interior quotation
marks omitted); DiPilato v. 7-Eleven, Inc., 662 F. Supp.2d 333, 340 (S.D.N.Y.
2009)(same). By the same reasoning, a party may not advance new theories that were
not presented to the magistrate judge in an attempt to obtain this second bite at the apple.
See Calderon v. Wheeler, 2009 WL 2252241, at *1, n. 1 (N.D.N.Y. July 28, 2009);2 Green
2
As Judge Suddaby noted in Calderon:
On de novo review, “[t]he judge m ay ... receive further evidence ....” 28 U.S.C. §
636(b)(1)(C). However, a district court will ordinarily refuse to consider argum ents, case law
and/or evidentiary m aterial that could have been, but was not, presented to the Magistrate
Judge in the first instance. See, e.g ., Paddington Partners v. Bouchard, 34 F.3d 1132,
1137-38 (2d Cir. 1994) (“In objecting to a m agistrate's report before the district court, a party
has no right to present further testim ony when it offers no justification for not offering the
testim ony at the hearing before the m agistrate.”) [internal quotation m arks and citations
om itted]; Pan Am . W orld Airways, Inc. v. Int'l Bhd. of Team sters, 894 F.2d 36, 40, n. 3 (2d
Cir.1990) (district court did not abuse its discretion in denying plaintiff's request to present
additional testim ony where plaintiff “offered no justification for not offering the testim ony at
the hearing before the m agistrate”).
2
v. City of New York, 2010 WL 148128, at * 4 (E.D.N.Y. Jan. 14, 2010)(“[N]ew claims . . .
presented in the form of, or along with, ‘objections . . .’ should be dismissed.”)(citations
omitted). General or conclusory objections, or objections which merely recite the same
arguments presented to the magistrate judge, are reviewed for clear error. Farid v. Bouey,
554 F. Supp. 2d 301, 306 n.2 (N.D.N.Y. 2008); see Frankel v. N.Y.C., 2009 WL 465645 at
*2 (S.D.N.Y. Feb. 25, 2009).3 After reviewing the Report-Recommendation, the Court may
“accept, reject, or modify, in whole or in part, the findings or recommendations made by
the magistrate judge. The judge may also receive further evidence or recommit the matter
to the magistrate judge with instructions.” 28 U.S.C. § 636(b)(1)(C).
III.
DISCUSSION
Other than asserting that Magistrate Judge Peebles “applied the wrong legal
standard,” Plaintiff’s objections amount to merely a re-argument of the CPLR § 208
issues. The Court finds that Magistrate Judge Peebles applied the correct legal standard
in determining whether to apply the tolling provision of CPLR § 208, and, for the reasons
stated in the Report and Recommendation, the Court finds that the tolling provision of
CPLR § 208 does not apply here.
3
The Southern District wrote in Frankel:
The Court m ust m ake a de novo determ ination to the extent that a party m akes specific
objections to a m agistrate's findings. United States v. Male Juvenile, 121 F.3d 34, 38 (2d
Cir.1997). W hen a party m akes only conclusory or general objections, or sim ply reiterates
the original argum ents, the Court will review the report strictly for clear error. See
Pearson-Fraser v. Bell Atl., No. 01 Civ. 2343, 2003 W L 43367, at *1 (S.D.N.Y. Jan. 6, 2003);
Cam ardo v. Gen. Motors Hourly-Rate Em ployees Pension Plan, 806 F.Supp. 380, 382
(W .D.N.Y.1992). Sim ilarly, “objections that are m erely perfunctory responses argued in an
attem pt to engage the district court in a rehashing of the sam e argum ents set forth in the
original [papers] will not suffice to invoke de novo review.” Vega v. Artuz, No. 97 Civ. 3775,
2002 W L 31174466, at *1 (S.D.N.Y. Sept. 30, 2002).
2009 W L 465645, at *2.
3
IV.
CONCLUSION
Accordingly, the Court ADOPTS the Report and Recommendation in its entirety,
and finds that the tolling provision of CPLR § 208 do not apply in this case. Therefore,
and for the reasons discussed in the November 4, 2010 Decision and Order, Defendant’s
motion to dismiss Plaintiff’s federal claims, dkt # 5, is GRANTED, and the Complaint is
DISMISSED.
IT IS SO ORDERED
Dated: September 14, 2011
4
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