John Mezzalingua Associates, Inc v. Corning Gilbert Inc.

Filing 569

SUMMARY ORDER - That the 564 Report and Recommendation is ADOPTED in its entirety. That PPC's 548 Motion to Enforce Judgment is GRANTED IN PART and DENIED IN PART as follows: DENIED with respect to an award of costs and attorneys' fees; and GRANTED in all other respects. That the supersedeas bond shall be enforced and the surety, Westchester, shall pay the amount owing and on the judgments, with accrued interest to date, to PPC unless within seven (7) days of issuance of this Summary Order Corning tenders full payment of the outstanding judgments with accrued interest to date to PPC. Signed by Senior Judge Gary L. Sharpe on 7/16/2018. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
PPC BROADBAND, INC.,
Plaintiff,

5:11-cv-761
(GLS/DEP)

v.
CORNING OPTICAL
COMMUNICATIONS RF, LLC,
Defendants.
________________________________
SUMMARY ORDER
On June 18, 2018, Magistrate Judge David E. Peebles issued a
Report and Recommendation (R&R), which recommends that plaintiff PPC
Broadband, Inc.’s motion to enforce judgment, (Dkt. No. 548), be granted
with the exception of its request for an award of costs and fees. (Dkt. No.
564.) Pending before the court are the objections of defendant Corning
Optical Communications RF, LLC and surety Westchester Fire Insurance
Company. (Dkt. Nos. 566, 567.)
Suffice it to say that Corning’s objections to the R&R are a rehashing
of the arguments presented to and rejected by Judge Peebles. (Dkt. No.

566.)1 Given the nature of these general objections, review for clear error
only is warranted. See Almonte v. N.Y. State Div. of Parole, No. Civ.
904CV484, 2006 WL 149049, at *5-6 (N.D.N.Y. Jan. 18, 2006). After
careful consideration of the R&R, the objections, and PPC’s response,
(Dkt. No. 568), the court finds no clear error and adopts the R&R, (Dkt. No.
564), in its entirety. Beyond being free from clear error, the court concurs
entirely with the logic and rationale of the R&R and goes one step further:
with respect to the court’s inherent authority to issue a stay, if there is any
such authority, the court would not exercise it here.
Finally, the R&R left open the exact timing of Westchester’s potential
obligation to satisfy the judgments in the event that Corning fails to pay.
(Dkt. No. 564 at 19-20.) The parties appear to be in agreement that one
week meets their approval, (Dkt. No. 567; Dkt. No. 568 at 12), and the
court adopts that term as “commercially reasonable.”
Accordingly, it is hereby

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Arguably, Corning’s contention that Judge Peebles “completely ignore[d]” its reliance
on the not-yet-effective amendment to Rule of Civil Procedure 62, (Dkt. No. 566 at 7), is a
specific objection that would warrant de novo review, see Almonte v. N.Y. State Div. of Parole,
No. Civ. 904CV484, 2006 WL 149049, at *5-6 (N.D.N.Y. Jan. 18, 2006). However, because
Corning’s argument is contrary to the scant authority on the issue–which was discussed and
cited by Judge Peebles–and derives from an amendment that is not yet effective, the court
rejects it.

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ORDERED that the Report and Recommendation (Dkt. No. 564) is
ADOPTED in its entirety; and it is further
ORDERED that PPC’s motion to enforce judgment (Dkt. No. 548) is
GRANTED IN PART and DENIED IN PART as follows:
DENIED with respect to an award of costs and attorneys’ fees;
and
GRANTED in all other respects; and it is further
ORDERED that the supersedeas bond shall be enforced and the
surety, Westchester, shall pay the amount owing on the judgments, with
accrued interest to date, to PPC unless within seven (7) days of issuance
of this Summary Order Corning tenders full payment of the outstanding
judgments with accrued interest to date to PPC; and it is further
ORDERED that the Clerk provide a copy of this Summary Order to
the parties.
IT IS SO ORDERED.
July 16, 2018
Albany, New York

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