Zink v. First Niagara Bank, N.A.

Filing 59

ORDER adopting Magistrate Judge Jeremiah J. McCarthy's Report and Recommendation 51 . Defendant's motion to dismiss 37 is denied. The case is recommitted to Magistrate Judge McCarthy for further proceedings. Signed by Hon. Richard J. Arcara on 5/9/14. (LAS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JEFFREY ZINK, on behalf of himself
and all others similarly situated,
Plaintiffs,
ORDER
13-CV-1076-A

v.
FIRST NIAGARA BANK, N.A.,
Defendant.

This case was referred to Magistrate Jeremiah J. McCarthy for pretrial
proceedings pursuant to 28 U.S.C. § 636(b)(1). On January 27, 2014, Magistrate
Judge McCarthy filed an Amended Report and Recommendation (Dkt. No. 51)
recommending that defendant First Niagara Bank, N.A.’s, motion to dismiss (Dkt. No.
37) plaintiff Jeffrey Zink’s Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6) be
denied. Defendant First Niagara filed objections to the Amended Report and
Recommendation primarily on the ground that federal law preempts plaintiff Zink’s state
law civil penalty claim for late presentment of a satisfaction of mortgage. (Dkt. No. 52).
The Court carefully reviewed the Amended Report and Recommendation, the
pleadings submitted by the parties, and, after oral argument April 11, 2014, it is hereby
ORDERED, upon de novo review of defendant First Niagara’s objections
pursuant to 28 U.S.C. § 636(b)(1) to the Amended Report and Recommendation, and
for all the reasons stated in the Amended Report and Recommendation, defendant’s
motion to dismiss (Dkt. No. 37) is denied.

The case is recommitted to Magistrate Judge McCarthy pursuant to the terms of
the Court’s prior referral order for further proceedings.
IT IS SO ORDERED.

____Richard J. Arcara____________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT

Dated: May 9, 2014

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