Shmueli v. Commissioner of Social Security

Filing 28

MEMORANDUM OPINION AND ORDER re: 19 MOTION for Summary Judgment . MOTION to Dismiss for Lack of Jurisdiction . filed by Commissioner of Social Security. The R&R is adopted as the opinion of the Court. Defendant's motio n to dismiss is GRANTED. (Doc. #19). This case is DISMISSED WITHOUT PREJUDICE to refiling after plaintiff has exhausted her administrative remedies. The Clerk is instructed to enter Judgment accordingly and close this case. The Clerk is further dire cted to (i) terminate the motion (Doc. #19), and (ii) mail a copy of this Memorandum Opinion and Order to plaintiff at the address on the docket. SO ORDERED. (Signed by Judge Vincent L. Briccetti on 9/14/18) (yv) Transmission to Docket Assistant Clerk for processing. Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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SARIT SHMUELI
:
Plaintiff,
:
:
v.
:
:
:
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
:
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MEMORANDUM OPINION
AND ORDER
17 CV 3734 (VB)

Briccetti, J.:
Before the Court is Magistrate Judge Judith C. McCarthy’s Report and Recommendation
(“R&R”), dated July 19, 2018 (Doc. #27), on defendant’s motion to dismiss the complaint for
lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), or, in the alternative, for
summary judgment pursuant to Fed. R. Civ. P. 56. (Doc. #19). Because plaintiff failed to
exhaust her administrative remedies, Judge McCarthy recommended granting defendant’s
motion to dismiss and dismissing the case without prejudice to refiling after plaintiff has
exhausted her administrative remedies.
For the following reasons, the Court adopts the R&R. Defendant’s motion to dismiss is
GRANTED. This case is DISMISSED WITHOUT PREJUDICE.
Familiarity with the factual and procedural background of this case is presumed.
A district court reviewing a magistrate judge’s report and recommendation “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). Parties may raise objections to the magistrate judge’s report and
recommendation, but they must be “specific[,] written,” and submitted within fourteen days after
being served with a copy of the recommended disposition, Fed. R. Civ. P. 72(b)(2); see also 28

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U.S.C. § 636(b)(1), or within seventeen days if the parties are served by mail. See Fed. R. Civ.
P. 6(d).
Insofar as a report and recommendation addresses a dispositive motion, a district court
must conduct a de novo review of those portions of the report or specified proposed findings or
recommendations to which timely objections are made. 28 U.S.C. § 636(b)(1)(C). The district
court may adopt those portions of a report and recommendation to which no timely objections
have been made, provided no clear error is apparent from the face of the record. Lewis v. Zon,
573 F. Supp. 2d 804, 811 (S.D.N.Y. 2008); Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y.
1985). The clearly erroneous standard also applies when a party makes only conclusory or
general objections, or simply reiterates his original arguments. Ortiz v. Barkley, 558 F. Supp. 2d
444, 451 (S.D.N.Y. 2008).
Neither party objected to Judge McCarthy’s thorough and well-reasoned R&R.
The Court has reviewed the R&R and finds no error, clear or otherwise.

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CONCLUSION
The R&R is adopted as the opinion of the Court.
Defendant’s motion to dismiss is GRANTED. (Doc. #19).
This case is DISMISSED WITHOUT PREJUDICE to refiling after plaintiff has
exhausted her administrative remedies.
The Clerk is instructed to enter Judgment accordingly and close this case.
The Clerk is further directed to (i) terminate the motion (Doc. #19), and (ii) mail a copy
of this Memorandum Opinion and Order to plaintiff at the address on the docket.
Dated: September 14, 2018
White Plains, NY
SO ORDERED:

____________________________
Vincent L. Briccetti
United States District Judge

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