Berger v. NYS Office for People with Developmental Disabilities et al
DECISION AND ORDERED, that the Report-Recommendation (Dkt. No. 5) is APPROVED and ADOPTED in its entirety; and it is further ORDERED, that the Complaint (Dkt. No. 1) is DISMISSED with leave to amend as against defendant Julie Lafountain; and it is fu rther ORDERED, that the Complaint (Dkt. No. 1) is DISMISSED without leave to amend as against defendant Bill Loya; and it is further ORDERED, that Bergers second, fourth, fifth, sixth, and seventh causes of action are DISMISSED without leave to amend ; and it is further ORDERED, that Berger has thirty (30) days to file a proposed amended complaint if she wishes to attempt to cure the defects in pleading as against defendant Lafountain. Signed by Senior Judge Lawrence E. Kahn on February 22, 2017. (Copy served via regular mail)(sas)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
NYS OFFICE FOR PEOPLE WITH
DECISION AND ORDER
This matter comes before the Court following an Order and Report-Recommendation
filed on November 8, 2016, by the Honorable Andrew T. Baxter, U.S. Magistrate Judge, pursuant
to 28 U.S.C. § 636(b) and Local Rule 72.3. Dkt. No. 5 (“Report-Recommendation”). Pro se
plaintiff Andria Berger filed Objections. Dkt. No. 6 (“Objections”).
Within fourteen days after a party has been served with a copy of a magistrate judge’s
report-recommendation, the party “may serve and file specific, written objections to the proposed
findings and recommendations.” Fed. R. Civ. P. 72(b); L.R. 72.1(c). If no objections are made, or
if an objection is general, conclusory, perfunctory, or a mere reiteration of an argument made to
the magistrate judge, a district court need review that aspect of a report-recommendation only for
clear error. Barnes v. Prack, No. 11-CV-0857, 2013 WL 1121353, at *1 (N.D.N.Y. Mar. 18,
2013); Farid v. Bouey, 554 F. Supp. 2d 301, 306–07, 306 n.2 (N.D.N.Y. 2008); see also
Machicote v. Ercole, No. 06-CV-13320, 2011 WL 3809920, at *2 (S.D.N.Y. Aug. 25, 2011)
(“[E]ven a pro se party’s objections 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.”). “A [district] judge . . . 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). Otherwise, a court “shall make a de novo determination of
those portions of the report or specified proposed findings or recommendations to which
objection is made.” Id.
Berger has waived judicial review of Judge Baxter’s Report-Recommendation because
she was late in filing her Objections. The Report-Recommendation, which was filed on
November 8, 2016, states that the parties have fourteen days to file objections. Rep.-Rec. at 19. It
further notes that failure to timely file objections will preclude appellate review. Id. Berger filed
her Objections on November 28, 2016, three days after the November 25 deadline. Docket. In
this circuit, “failure to object timely to a magistrate’s report operates as a waiver of any further
judicial review of the magistrate’s decision.” Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993)
(quoting Small v. Sec’y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989)). A pro se
litigant such as Berger loses the right to appellate review only if “the magistrate’s
report . . . warn[s] the pro se litigant of the consequences of the failure to object.” Frank v.
Johnson, 968 F.2d 298, 300 (2d Cir. 1992). The warning contained in Judge Baxter’s ReportRecommendation complies with Small’s requirement that such a warning “specifically cite 28
U.S.C. § 636(b)(1) and rules 72, 6(a) and 6(e) of the Federal Rules of Civil Procedure.” 892 F.2d
at 16. Thus, Berger was on notice of the deadline and the consequences of failing to comply with
it. While a court “may excuse the default in the interests of justice,” Spence v. Superintendent,
Great Meadow Corr. Facility, 219 F.3d 162, 174 (2d Cir. 2000) (quoting Thomas v. Arn, 474
U.S. 140, 155 (1985)), the Court sees no reason to do so here. None of the objections Berger
raises has “substantial merit,” and there is no indication that Judge Baxter “committed plain error
in ruling against the defaulting party.” Id.
Even if the Court ignored Berger’s default, her objections would not survive de novo
review. She argues that her claim for tortious interference with performance of a contract should
not be dismissed. Objs. at 1. But she never explains how any of the defendants caused her or her
employer to breach her employment contract. Instead, she simply asserts that “Defendant
Lafountain interfered with [her] obligations under the law. [She] followed the law and no longer
has an employment position because of it.” Id. Berger cannot state a claim for tortious
interference without alleging a breach of contract, see Lama Holding Co. v. Smith Barney, 668
N.E.2d 1370, 1375 (N.Y. 1996) (noting that “[t]ortious interference with contract
requires . . . actual breach of [a] contract”), so her failure to do so makes this objection meritless.
Berger also argues that she has stated a claim under New York General Business Law
section 349(a), which forbids “[d]eceptive acts or practices in the conduct of any business, trade,
or commerce or in the furnishing of any service in this state.” Objs. at 1. Berger’s problem is that
she cannot make out a prima facie case under section 349 unless she shows that “the defendant’s
conduct is ‘consumer-oriented.’” Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54, 64–65 (2d Cir.
2010) (quoting Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, N.A., 647
N.E.2d 741, 744 (N.Y. 1995)). “For conduct to be ‘consumer oriented,’ it must involve ‘some
harm to the public at large.’” Toussie v. Allstate Ins. Co., No. 15-CV-5235, 2016 WL 6537670,
at *4 (E.D.N.Y. Nov. 3, 2016) (quoting Dupler v. Costco Wholesale Corp., 249 F.R.D. 29, 43 n.3
(E.D.N.Y. 2008)). Here, Berger has alleged at most injury to herself; she has not pointed to any
harm to the public at large. Judge Baxter was right to recommend dismissal of this claim.
Finally, Berger objects to Judge Baxter’s finding that she cannot bring a claim under
section 16.35(c) of the New York Mental Hygiene Law. Objs. at 9. As Judge Baxter correctly
pointed out, however, “there is no indication that there is any private right of action for any
‘violation’ of this statute. In fact, the beginning of subsection c states that the efforts of the
Commissioner ‘may’ include the following ‘projects.’” Rep.-Rec. at 6 n.4. Thus, this objection is
not well taken.
The Court has reviewed the remainder of the Report-Recommendation for clear error and
has found none.
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 5) is APPROVED and
ADOPTED in its entirety; and it is further
ORDERED, that the Complaint (Dkt. No. 1) is DISMISSED with leave to amend as
against defendant Julie Lafountain; and it is further
ORDERED, that the Complaint (Dkt. No. 1) is DISMISSED without leave to amend as
against defendant Bill Loya; and it is further
ORDERED, that Berger’s second, fourth, fifth, sixth, and seventh causes of action are
DISMISSED without leave to amend; and it is further
ORDERED, that Berger has thirty (30) days to file a proposed amended complaint if
she wishes to attempt to cure the defects in pleading as against defendant Lafountain; and it is
ORDERED, that the Clerk of the Court serve a copy of this Decision and Order on all
parties in accordance with the Local Rules.
IT IS SO ORDERED.
February 22, 2017
Albany, New York
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