Aghaeepour et al v. Northern Leasing Systems, Inc. et al

Filing 171

OPINION & ORDER for 154 Motion for Sanctions, filed by Lease Finance Group, LLC, Joseph I. Sussman, P.C., Louis Cucinotta, MBF Leasing, LLC, Joseph I. Sussman, Jennifer Centeno, Northern Leasing Systems, Inc., Jay Cohen, Sara Kriege r, 163 Report and Recommendations. For the reasons stated above, the Court adopts MJ Krause's R&R in its entirety. Defendants' motion for sanctions is granted to the extent of dismissing Plaintiffs Higgins, Rivera, and Zhang's c laims without prejudice. In the event said Plaintiffs appear for their deposition no later than 45 days prior to the deadline for Defendants to file a motion for summary judgment in this action, the dismissal sanction will be deemed vacated only as to those Plaintiffs who timely appear for their depositions. The Clerk of the Court is respectfully requested to terminate the motion at ECF No. 154. (Signed by Judge Nelson Stephen Roman on 6/15/2023) (ate)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ELAINE AGHAEEPOUR, ASHLEY GLASGOW,
JULIE HIGGINS, SHANE MOORE, MICHELE
NORRIS, JESUS RIVERA, SCHILCO, INC. and
RAY SHILBER,
Plaintiffs,
-againstNORTHERN LEASING SYSTEMS, INC., MBF
LEASING, LLC, LEASE FINANCE GROUP, LLC,
LOUIS CUCINOTTA, JENNIFER CENTENO a/k/a
JENNIFER NUGENT, JAY COHEN, SARA
KRIEGER, JOSEPH I. SUSSMAN, and JOSEPH I.
SUSSMAN, P.C.,
Defendants.

06/15/2023

14 cv 5449 (NSR)
OPINION & ORDER

NELSON S. ROMÁN, United States District Judge:
On or about July 18, 2014, Plaintiffs Elaine Aghaeepour (“Aghaeepour”); Ashley Glasgow
(“Glasgow”); Julie Higgins (“Higgins”); Shane Moore (“Moore”); Michele Norris (“Norris”);
Jesus Rivera (“Rivera”); Schilco, Inc. (“Schilco”); and Ray Schilber (“Schilber”) (collectively,
“Plaintiffs”) commenced the instant action against Jay Cohen (“Cohen”); Sara Krieger
(“Krieger”); Jennifer Centeno (“Centeno”); Louis Cucinotta (“Cucinotta”) (collectively,
“Individual Defendants”); Joseph I. Sussman (“Sussman”); Joseph I. Sussman, P.C. (“Sussman,
P.C.”) (collectively, “Sussman Defendants”); Lease Finance Group, LLC (“LFG”); MBF Leasing,
LLC (“MBF”); and Northern Leasing Systems, Inc. (“NLS”) (collectively, “Corporate
Defendants”) (with Individual Defendants and Sussman Defendants, collectively, “Defendants”),
alleging claims under the federal Racketeer Influenced Corrupt Organizations Act (“RICO”), 18
U.S.C. §§ 1962, 1964; the federal Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681b(f),
1681s-2(b)(A); New York's Anti–Deceptive Trade Practices Act (“NYFCRA"), N.Y. Gen. Bus.
Law §§ 349, 380; and common law fraud. (See First Am. Compl. (“Compl.”), ECF No. 6.) On

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January 17, 2017, Plaintiffs filed a Second Amended Complaint (“SAC”) asserting similar claims.
(ECF No. 48.) On January 12, 2021, Defendants moved for sanctions as against Plaintiffs Higgins,
Rivera, and Zhang due to their failure to appear for court ordered depositions. (ECF No. 154.) The
matter was initially referred to Magistrate Judge Lisa Smith and, upon her retirement, to Magistrate
Judge Andrew Krause (“MJ Krause”) for all pre-trial matters. (ECF No. 32.) On January 12, 2023,
Defendants moved for sanctions as against Plaintiffs Higgins, Rivera, and Zhang based on their
failure to appear for court-ordered depositions. (ECF No. 154.) Presently before the Court is MJ
Krause’s Report and Recommendation (“R&R”), which in essence grants the application to the
extent that it dismisses Plaintiffs’ claims without prejudice. (ECF No. 163.) For the following
reasons, the Court adopts the R&R in its entirety.
BACKGROUND
The following facts are drawn from Plaintiffs' Second Amended Complaint and are taken
as true for purposes of resolving the instant Motion. This action stems from Defendants’ alleged
racketeering scheme to “intimidate out-of-state individuals into paying unwarranted sums of
money by commencing or threatening to commence fraudulent lawsuits in New York City Civil
Court” based on forged documents. (SAC ¶ 1.) In furtherance of this scheme, Defendants also
made inaccurate entries on, and improperly accessed, Plaintiffs’ credit reports. (Id. ¶ 2.)
STANDARD OF REVIEW
“A magistrate judge may hear a pretrial matter dispositive of a claim or defense” if so
designated by a district court. See Fed. R. Civ. P. 72(b)(1); accord 28 U.S.C. § 636(b)(1)(B). In
such a case, the magistrate judge “must enter a recommended disposition, including, if appropriate,
proposed findings of fact.” Fed. R. Civ. P. 72(b)(1); accord 28 U.S.C. § 636(b)(1). Where a
magistrate judge issues a report and recommendation,
[w]ithin fourteen days after being served with a copy, any party may serve and file
written objections to such proposed findings and recommendations as provided by
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rules of court. A judge of the court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which
objection is made. A judge of the court 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)(1); accord Fed. R. Civ. P. 72(b)(2), (3).
However, “[t]o accept the report and recommendation of a magistrate, to which no timely
objection has been made, a district court need only satisfy itself that 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)
(quoting Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985)); accord Caidor v. Onondaga
County, 517 F.3d 601, 604 (2d Cir. 2008) (“[F]ailure to object timely to a magistrate’s report
operates as a waiver of any further judicial review of the magistrate’s decision.”) (quoting Small
v. Sec. of HHS, 892 F.2d 15, 16 (2d Cir. 1989)); see also Fed. R. Civ. P. 72 advisory committee
note (1983 Addition, Subdivision (b)) (“When no timely objection is filed, the court need only
satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.”).
To the extent a party makes specific objections to a report and recommendation, those
objections must be reviewed de novo. 28 U.S.C. 636(b)(l); Fed. R. Civ. P. 72(b); United States v.
Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). In a de novo review, a district court must consider
the "[r]eport, the record, applicable legal authorities, along with Plaintiff’s and Defendant's
objections and replies." Diaz v. Girdich, No. 04-cv-5061, 2007 U.S. Dist. LEXIS 4592, at *2
(S.D.N.Y. Jan. 23, 2007) (internal quotation marks omitted). But to the extent a party "makes only
general and conclusory objections . . . or simply reiterates the original arguments, the district court
will review the report and recommendations strictly for clear error." Harris v. Burge, No. 04-cv5066, 2008 U.S. Dist. LEXIS 22981, at *18 (S.D.N.Y. Mar. 25, 2008). The distinction turns on
whether a litigant's claims are "clearly aimed at particular findings in the magistrate's proposal" or
are a means to take a "'second bite at the apple' by simply relitigating a prior argument." Singleton
3

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v. Davis, No. 03-cv-1446, 2007 U.S. Dist. LEXIS 3958, at *2 (S.D.N.Y. Jan. 18, 2007) (citation
omitted).
DISCUSSION
Here, neither party timely objected to the R&R. Thus, the Court reviews the R&R for clear
error, and it finds none here. MJ Krause conditionally granted Defendants’ motion for sanctions
to the extent of dismissing Plaintiffs Higgins, Rivera, and Zhang’s claims without prejudice; MJ
Krause also provided that, in the event said Plaintiffs appeared for their deposition no later than
45 days prior to the deadline for Defendants to file a motion for summary judgment in this action,
the dismissal sanction would be deemed vacated. The R&R thereby enables the claims to be
adjudicated on the merits without interrupting the normal progression of the litigation.
CONCLUSION
For the reasons stated above, the Court adopts MJ Krause’s R&R in its entirety.
Defendants’ motion for sanctions is granted to the extent of dismissing Plaintiffs Higgins, Rivera,
and Zhang’s claims without prejudice. In the event said Plaintiffs appear for their deposition no
later than 45 days prior to the deadline for Defendants to file a motion for summary judgment in
this action, the dismissal sanction will be deemed vacated only as to those Plaintiffs who timely
appear for their depositions. The Clerk of the Court is respectfully requested to terminate the
motion at ECF No. 154.
Dated: June 15, 2023
White Plains, New York

SO ORDERED

____________________________
Hon. Nelson S. Román, U.S.D.J

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