Villa v. Tiano's Construction Corp. et al

Filing 59

ADOPTION OF REPORT AND RECOMMENDATION: Having reviewed the Report, and finding no clear error on the face of the record, see 28 U.S.C. § 636(b) (1) (B), it is hereby ORDERED AND ADJUDGED that the Report and Recommendation of United States Magist rate Judge Henry B. Pitman, dated June 22, 2012, be and the same hereby is APPROVED, ADOPTED, and RATIFIED by the Court in its entirety. This action is hereby DISMISSED as to Defendants Mitrani Plasterers Co., Inc., Tiano's Construction Mitrani Cesare General Partnership and GBE Alasia Contracting Corp.The Court certifies, pursuant to 28 U.S.C. § 1915(a) (3), that any appeal from this Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED. (Docketed as per Chambers Instructions) (Signed by Judge Deborah A. Batts on 9/06/2012) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-----------------------------------X

DANILO VILLA,

Plaintiff,
11 civ. 3026 (DAB) (HBP)
ADOPTION OF REPORT
AND RECOMMENDATION

v.
TIANO'S CONSTRUCTION CORP.,
ET AL.,
Defendants.

-----------------------------------x
DEBORAH A. BATTS, United States District Judge.

This matter is before the Court upon the May 21, 2012 Report
and Recommendation (Docket Number 49) of United States Magistrate
Judge Henry B. Pitman (the "Report").

Judge Pitman's Report

recommends that this action be dismissed against Defendants
Mitrani Plasterers Co., Inc., Tiano's Construction Mitrani Cesare
General Partnership and GBE Alasia Contracting Corp. on the
ground that Plaintiff has not completed service of the summons
and complaint within the time permitted by Fed. R. Civ. P. 4(m).
(Report at 3.)

"Within fourteen days after being served with a copy [of a
Magistrate Judge's Report and Recommendation], a party may serve
and file specific written objections to the proposed findings and
recommendations."
636(b) (1) (C).

Fed. R. Civ. P. 72(b) (2); accord 28 U.S.C.

§

The district court may adopt those portions of the

report to which no timely objection has been made, so long as

there is no clear error on the face of the record.

wilds v.

United Parcel Serv., Inc., 262 F.Supp.2d 163, 169 (S.D.N.Y.
2003),

U[F]ailure to object timely to a magis~ra~e/s report

operates as a waiver of any further judicial review of the
magistrate's decision."
604 (2d Cir. 2008)
(2d Cir. 1989».

caidor v. Onondaga County, 517 F.3d 601,

(quoting Small v. Sec. of HHS, 892 F.2d 15, 16
This rule applies to pro se parties so long as

the magistrate's report "explicitly states that failure to object
to the report within [fourteen (14)] days will preclude appellate
review.,,"

Small, 892 F.2d at 16.

Despite being advised of the procedure for filing objections
in Judge Pitman's Report, and warned that failure to file
objections would waive objections and preclude appellate review,
(Report at 3-4), Plaintiff has filed no timely objections to the
Report. 1

Nor has any other Party filed objections to the Report.

1 On July 18, 2012, Plaintiff filed a document entitled
"Notice in Opposition to Defendants' Motion for Summary Judgment"
(Docket Number 55.) Having reviewed this Document, the Court
construes it as an Objection to Magistrate Judge pitman's Report
and Recommendation dated July 6, 2012 (Docket Numner 54). In the
July 6, 2012 Report, Judge Pitman recommends that summary
judgment be granted and the action be dismissed as to Defendants
Lumbermens, St. Paul, Pythagoras and Safeco. Plaintiff's July 18,
2012 filing does not mention Defendants Mitrani Plasterers Co.,
Inc., Tiano's Construction Mitrani Cesare General Partnership and
GBE Alasia Contracting Corp. or the issue of service of the
summons and complaint----the subject of the instant Report and
Recommendation----and thus cannot fairly be said to constitute an
Objection to that Report.

2

Having reviewed the Report, and finding no clear error on
the face of the record, see 28 U.S.C. § 636(b) (1) (B), it is
hereby ORDERED AND ADJUDGED that the Report and Recommendation of
United States Magistrate Judge Henry B. Pitman, dated June 22,
2012, be and the same hereby is APPROVED, ADOPTED, and RATIFIED
by the Court in its entirety. This action is hereby DISMISSED as
to Defendants Mitrani Plasterers Co., Inc., Tiano's Construction
Mitrani Cesare General Partnership and GBE Alasia Contracting
Corp.

The Court certifies, pursuant to 28 U.S.C.

§

1915(a) (3),

that any appeal from this Order would not be taken in good faith,
and therefore in forma pauperis status is denied for the purpose
of an appeal.

See CORRedge v. United States, 369 U.S. 438,

444-45 (1962).

So ORDERED.

Dated:

New York, New York

September 6, 2012

.ar;;ra.~
Deborah A. Batts
United States District Judge

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