Maraschiello v. City of Buffalo Police Department et al

Filing 66

DECISION AND ORDER granting 32 Motion for Partial Summary Judgment and granting the city summary judgment sua sponte; finding as moot 48 Motion for Extension of Time to Complete Discovery; adopting Report and Recommendation re 49 ; finding as moot 65 Motion to Strike ; denying 22 Motion for Summary Judgment. Clerk of Court to close case. Signed by Hon. Richard J. Arcara on 2/16/2012. (JMB)

UNITED STATES DISTRICT COURT
W ESTERN DISTRICT OF NEW YORK

MARK R. MARASCHIELLO,
Plaintiff,
DECISION AND ORDER
10-CV-187A
v.

CITY OF BUFFALO POLICE DEPARTMENT and
H. MCCARTHY GIPSON,
Defendants.

The above-referenced case was referred to Magistrate Judge Leslie G.
Foschio pursuant to 28 U.S.C. § 636(b)(1). On January 6, 2011, plaintiff filed a
motion for partial summary judgment. (Dkt. No. 22.) On February 18, 2011,
defendant H. McCarthy Gipson (“Gipson”) filed a cross-motion for partial
summary judgment. (Dkt. No. 32.) On September 13, 2011, Magistrate Judge
Foschio filed a Report and Recommendation (Dkt. No. 49), recommending that
plaintiff’s motion be denied and that Gipson’s cross-motion he granted.
Additionally, Magistrate Judge Foschio recommended granting defendant City of
Buffalo Police Department (“City”) summary judgment sua sponte.
Plaintiff filed objections to the Report and Recommendation on October 11,
2011. Defendants filed responses to plaintiff’s objections on November 4, 2011.
The Court held an initial oral argument on December 19, 2011. Because plaintiff

raised concerns about Magistrate Judge Foschio’s sua sponte recommendation
of summary judgment to the City, the Court gave formal notice that it was
contemplating an adoption of the recommendation and gave all parties an
opportunity to file supplemental briefing. See NetJets Aviation, Inc. v. LHC
Commc’ns, LLC, 537 F.3d 168, 178 (2d Cir. 2008) (authorizing district courts to
grant summary judgment sua sponte “after giving the party against which the
court is contemplating such a decision notice and an opportunity to present
evidence and arguments in opposition”). The parties filed supplemental briefing
accordingly, and the Court held a supplemental oral argument on January 24,
2012.
Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo
determination of those portions of the Report and Recommendation to which
objections have been made. Upon a de novo review of the Report and
Recommendation, and after reviewing the submissions, the Court adopts the
proposed findings of the Report and Recommendation.
Accordingly, and for the reasons set forth in Magistrate Judge Foschio’s
Report and Recommendation, plaintiff’s motion for summary judgment (Dkt. No.
22) is denied. Defendant Gipson’s cross-motion for summary judgment (Dkt. No.
32) is granted. The Court also grants the City summary judgment sua sponte.
The Court declines to exercise supplemental jurisdiction over plaintiff’s state-law
claim. The pending motions to extend time for discovery (Dkt. No. 48) and to
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strike plaintiff’s second supplemental memorandum of law (Dkt. No. 65) are
denied as moot.
The Clerk of the Court shall close this case.
SO ORDERED.

s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
DATED: February 15, 2012

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