Sloniger v. Deja et al

Filing 160

ORDER ACCEPTING Judge Scott's April 22, 2014 155 Report and Recommendation in its entirety; DENYING Plaintiff's 156 Objections; GRANTING Plaintiff's 144 Motion for Summary Judgment to the extent stated in Judge Scott's report and recommendation. Signed by William M. Skretny, Chief Judge on 10/27/2014. (MEAL)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
SUSAN REED as executrix of the ESTATE OF
SHARON L. SLONIGER,
SUSAN SLONIGER REED as executrix of
the ESTATE OF EDWARD SLONIGER, deceased,
Plaintiff,
v.

ORDER
09-CV-858S

SIEGMUND DEJA,
Defendant.

1.

This Court previously referred the cases consolidated in the instant action1

to the Honorable Hugh B. Scott, United States Magistrate Judge, pursuant to 28 U.S.C. §
636(b)(1) to supervise all pre-trial matters and to prepare and file a report and
recommendation containing findings of fact, conclusions of law and a recommended
disposition on any dispositive motion. Plaintiff filed a summary judgment motion on March
20, 2014, with respect to the claims made on behalf of the Estate of Edward Sloniger.
2.

On April 22, 2014, Judge Scott filed a Report and Recommendation

recommending that Plaintiff’s motion for summary judgment be granted on the issues of
“serious injury” under N.Y. Insurance Law and Defendant’s negligence. Pursuant to 28
U.S.C. § 636(b)(1)(C), any party may serve and file written objections to a report and
recommendation of a magistrate judge within fourteen days after being served with a copy.
Local Rule of Civil Procedure 72(b) further requires that written objections to a magistrate

1

In a February 11, 2014 order, this Court consolidated Case No. 10-CV-379 (brought by Susan
Sloniger Reed as executrix of the estate of Edward Sloniger) into the instant case, No. 09-CV-858
(brought by Susan Sloniger Reed as executrix of the estate of Sharon L. Sloniger).

judge’s report “shall specifically identify the portions of the proposed findings and
recommendations to which objection is made and the basis for each objection, and shall
be supported by legal authority.” After de novo review of those portions of the report and
recommendation to which proper objections are made, a district court “may accept, reject,
or modify, in whole or in part, the findings or recommendations made by the magistrate
judge.” See 28 U.S.C. § 636(b)(1)(C); United States v. Gardin, 451 F. Supp. 2d 504, 506
(W.D.N.Y. 2006). Plaintiff timely filed objections to Judge Scott’s Report and
Recommendation on May 6, 2014, specifically with respect to the Magistrate Judge’s
finding that Defendant was not precluded from arguing the decedent’s failure to mitigate
damages in future proceedings.
3.

Upon de novo review of the report in light of Plaintiff’s timely filed objections,

this Court finds no legal or factual error in Judge Scott’s recommended disposition of
Plaintiff’s summary judgment motion, and the Report and Recommendation is accepted
in its entirety.
4.

Plaintiff also objects to Judge Scott’s decision to deny her request for a stay

of the proceedings on damages pending resolution of a not-yet-filed state insurance
coverage action. Pursuant to 28 U.S.C. § 636(b)(1)(A), a magistrate judge may, with certain
exceptions, hear and determine any pretrial matter pending before the court.

The

magistrate judge’s order on such a pretrial matter will be reconsidered by the district judge
only when it has been established that it is clearly erroneous or contrary to law. See 28
U.S.C. § 636(b)(1)(A). This burden has not been met here, therefore this objection will also
be denied.

2

IT HEREBY IS ORDERED, that this Court ACCEPTS Judge Scott’s April 22, 2014
Report and Recommendation (Docket No. 155) in its entirety;
FURTHER, that Plaintiff’s Objections (Docket No. 156) are DENIED.
FURTHER, that Plaintiff’s motion for summary judgment (Docket No. 144) is
GRANTED to the extent stated in Judge Scott’s report and recommendation.
SO ORDERED.

Dated: October 27, 2014
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Court

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