Williams v. Vaccaro et al

Filing 62

DECISION AND ORDER ACCEPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AARON AND ADOPTING THE REPORT AS THE OPINION OF THE COURT for 61 Report and Recommendations. For the reasons set forth in his Report and Recommendation issued June 1, 2022 (Docket No. 61), Magistrate Judge Aaron recommends that the court dismiss the action without prejudice as to Officer Vaccaro. I have reviewed the Report and Recommendation in which the learned Magistrate Judge concludes that Plaintiff's req uest for an extension of time to service Officer Vaccaro should be denied and this action should be dismissed without prejudice as to Officer Vaccaro because Plaintiff has not made a showing of good cause for his failure to properly serve which would entitle him to such an extension. Plaintiff has not filed any objections to the Report and Recommendation. The deadline for doing so passed yesterday. Judge Aaron's analysis cannot be faulted. I agree with the Report's conclusion that the complaint should be dismissed as against Officer Vaccaro, notwithstanding the fact that the statute of limitations has run and any new lawsuit against the officer would be dismissed as time barred. Indeed, my only quarrel with Judge Aaron's deci sion is that he recommends that the complaint be dismissed without prejudice (and indeed, the order to show cause directed Mr. Williams to show why the complaint should not be dismissed "without prejudice"). I do not want Mr. Williams to be under any misapprehension; his claim against Officer Vaccaro is time barred and because I agree that it should be dismissed for failure to serve the officer, it cannot be resurrected. The effect of this order is to dismiss his claim against Officer Vaccaro with prejudice, as Judge Aaron recognized. (See Report and Recommendation at 8-9). Mr. Williams is not without a remedy. As the learned Magistrate Judge notes, he may well have a timely claim against his former lawyers for malpractice, assumi ng he sues them (in the New York State Supreme Court, since it is a state law claim in which diversity is lacking) very soon. His lawyers withdrew in November 2020, having failed to effect proper service on the Officer within three years of the occur rence of the event that precipitated this lawsuit; they did so having been advised by the City that the Officer had not in fact been served. Mr. Williams was indeed entitled to rely on his lawyers to get Officer Vaccaro served, right up until the tim e they were relieved of their representation. Serving police officers is not difficult; lawyers accomplish it all the time, so serving in the wrong way (which is what counsel did) would appear to be an error that falls below the standard of care incu mbent on a licensed professional. As Judge Aaron noted, Mr. Williams would have to prove his underlying claim against Officer Vaccaro in order to succeed on a malpractice claim. (Report and Recommendation, n. 7). But the only venue presently open to him to prove his claim against Officer Vaccaro is a lawsuit against his former counsel. He cannot sue the officer any longer. I appreciate that Mr. Williams was not asked why his claim should be dismissed with prejudice, so I will at this moment acce pt the Report's recommendation and dismiss it without prejudice. However, I direct Mr. Williams to show cause, no later than July 15, 2022, why the dismissal should not be converted to one with prejudice, on the ground that the statute of limitations has run. (Signed by Judge Colleen McMahon on 6/16/2022) BY ECF TO ALL COUNSEL (kv)

Case 1:19-cv-03548-CM-SDA Document 62 Filed 06/16/22 Page 1 of 3

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
6/16/2022
SHAMARK WILLIAMS,
Plaintiff,

No. 19 Civ. 03548 (CM) (SDA)

-againstMICHAEL VACCARO, ET AL.,
Defendants.
DECISION AND ORDER ACCEPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE AARON AND
ADOPTING THE REPORT AS THE OPINION OF THE COURT
McMahon, J:
Pending before the court is a response by pro se Plaintiff Shamark Williams (“Plaintiff” or
“Williams”) to Magistrate Judge Aaron’s April 13, 2022, Order (Docket No. 46) that Plaintiff
show cause why this action should not be dismissed without prejudice against Defendant New
York City Police Officer Michael Vaccaro (“Officer Vaccaro”) for failure to timely serve Officer
Vaccaro, pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.
For the reasons set forth in his Report and Recommendation issued June 1, 2022 (Docket
No. 61), Magistrate Judge Aaron recommends that the court dismiss the action without prejudice
as to Officer Vaccaro.
I have reviewed the Report and Recommendation in which the learned Magistrate Judge
concludes that Plaintiff’s request for an extension of time to service Officer Vaccaro should be
denied and this action should be dismissed without prejudice as to Officer Vaccaro because

Case 1:19-cv-03548-CM-SDA Document 62 Filed 06/16/22 Page 2 of 3

Plaintiff has not made a showing of good cause for his failure to properly serve which would entitle
him to such an extension.
Plaintiff has not filed any objections to the Report and Recommendation. The deadline for
doing so passed yesterday.
Judge Aaron’s analysis cannot be faulted. I agree with the Report’s conclusion that the
complaint should be dismissed as against Officer Vaccaro, notwithstanding the fact that the statute
of limitations has run and any new lawsuit against the officer would be dismissed as time barred.
Indeed, my only quarrel with Judge Aaron’s decision is that he recommends that the complaint be
dismissed without prejudice (and indeed, the order to show cause directed Mr. Williams to show
why the complaint should not be dismissed “without prejudice”). I do not want Mr. Williams to
be under any misapprehension; his claim against Officer Vaccaro is time barred and because I
agree that it should be dismissed for failure to serve the officer, it cannot be resurrected. The effect
of this order is to dismiss his claim against Officer Vaccaro with prejudice, as Judge Aaron
recognized. (See Report and Recommendation at 8-9).
Mr. Williams is not without a remedy. As the learned Magistrate Judge notes, he may well
have a timely claim against his former lawyers for malpractice, assuming he sues them (in the New
York State Supreme Court, since it is a state law claim in which diversity is lacking) very soon.
His lawyers withdrew in November 2020, having failed to effect proper service on the Officer
within three years of the occurrence of the event that precipitated this lawsuit; they did so having
been advised by the City that the Officer had not in fact been served. Mr. Williams was indeed
entitled to rely on his lawyers to get Officer Vaccaro served, right up until the time they were
relieved of their representation. Serving police officers is not difficult; lawyers accomplish it all
the time, so serving in the wrong way (which is what counsel did) would appear to be an error that

Case 1:19-cv-03548-CM-SDA Document 62 Filed 06/16/22 Page 3 of 3

falls below the standard of care incumbent on a licensed professional. As Judge Aaron noted, Mr.
Williams would have to prove his underlying claim against Officer Vaccaro in order to succeed
on a malpractice claim. (Report and Recommendation, n. 7). But the only venue presently open
to him to prove his claim against Officer Vaccaro is a lawsuit against his former counsel. He
cannot sue the officer any longer.
I appreciate that Mr. Williams was not asked why his claim should be dismissed with
prejudice, so I will at this moment accept the Report’s recommendation and dismiss it without
prejudice. However, I direct Mr. Williams to show cause, no later than July 15, 2022, why the
dismissal should not be converted to one with prejudice, on the ground that the statute of
limitations has run.
Dated: June 16, 2022

_____________________________________
U.S.D.J.
BY ECF TO ALL COUNSEL