Scull v. Hennegan et al

Filing 101

REPORT AND RECOMMENDATION re defendant Anthony Bergamo. Signed by Hon. Jeremiah J. McCarthy on 1/24/18. (Court has mailed a copy of this R&R to plaintiff). (DAZ)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
JOHN T. SCULL,
REPORT AND RECOMMENDATION
Plaintiff,
15-CV-00309-RJA-JJM
v.
PATRICK K. HENNEGAN,
ROGER TREVINO and
JOHN P. BARTOLOMEI,
BRIAN DEL PORTO,
NIAGARA FALLS REDEVELOPMENT LLC,
11TH STREET PROPERTIES LLC,
CLARKSVILLE LAND COMPANY LLC,
HOWARD MILSTEIN (Owner NFR),
ANTHONY BERGAMO (President NFR),
CITY OF NIAGARA FALLS NEW YORK,
THOMAS G. EWING,
Defendants.
______________________________________

This case was referred to me by Hon. Richard J. Arcara for supervision of pretrial
proceedings [8].1 For the following reasons, I recommend that the defendant Anthony Bergamo
be dismissed from the action pursuant to Fed. R. Civ. P. (“Rule”) 25(a)(1).

BACKGROUND
The parties’ familiarity with the allegations of the Amended Complaint [31],
which are set forth in my May 4, 2017 Report and Recommendation [64], is presumed. By
letter dated October 12, 2017, defendant Bergamo’s counsel informed the parties that he passed
away on September 29, 2017 [85]. I deemed that letter a statement of death (Text Order dated
October 16, 2017 [86]), and docketed it as such [85]. I also informed the parties that if a motion
1

Bracketed references are to the CM/ECF docket entries.

for substitution was not filed by January 17, 2018, I would recommend that the action against
defendant Bergamo be dismissed. Text Order dated October 16, 2017 [86]. Copies of my Text
Order [86] and the statement of death [85] were mailed to plaintiff at the address he had provided
to the Court. October 16, 2017 Remark [87]. The January 17, 2018 deadline has passed and no
motion for substitution has been filed or extension requested.

ANALYSIS
Rule 25(a)(1) states that “[i]f a party dies and the claim is not extinguished, the
court may order substitution of the proper party. A motion for substitution may be made by any
party or by the decedent's successor or representative. If the motion is not made within 90 days
after service of a statement noting the death, the action by or against the decedent must be
dismissed”.2 Since more than 90 days have elapsed since the statement noting defendant
Bergamo’s death was served on the parties and no motion for substitution (or for an extension)
has been filed, the claims against defendant Bergamo must be dismissed. See Sparks v. Casual
Male Retail Group., Inc., 2010 WL 5647109, *1 (W.D.N.Y. 2010) (McCarthy, M.J.), adopted,
2011 WL 283276 (W.D.N.Y. 2011) (Arcara, J); Perry v. Perry, 2014 WL 2993488, *2 (E.D.N.Y.
2014).

CONCLUSION
For these reasons, I recommend that defendant Bergamo be dismissed from this
action, with prejudice. Unless otherwise ordered by Judge Arcara, any objections to this Report

2

The only exception under this rule is for public officers sued solely in their official capacities. See
Rule 25(d); Baron v. Miller, 2015 WL 1788945, *3 (N.D.N.Y. 2015). Since defendant Bergamo is sued
as a private individual (Amended Complaint [31], ¶33), that exception does not apply.

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and Recommendation must be filed with the clerk of this court by February 12, 2018. Any
requests for extension of this deadline must be made to Judge Arcara. A party who “fails to
object timely . . . waives any right to further judicial review of [this] decision”. Wesolek v.
Canadair Ltd., 838 F. 2d 55, 58 (2d Cir. 1988); Thomas v. Arn, 474 U.S. 140, 155 (1985).
Moreover, the district judge will ordinarily refuse to consider de novo arguments,
case law and/or evidentiary material which could have been, but were not, presented to the
magistrate judge in the first instance. Patterson-Leitch Co. v. Massachusetts Municipal
Wholesale Electric Co., 840 F. 2d 985, 990-91 (1st Cir. 1988).
The parties are reminded that, pursuant to Rule 72(b) and (c) of this Court’s Local
Rules of Civil Procedure, written objections shall “specifically identify the portions of the
proposed findings and recommendations to which objection is made and the basis for each
objection . . . supported by legal authority”, and must include “a written statement either
certifying that the objections do not raise new legal/factual arguments, or identifying the new
arguments and explaining why they were not raised to the Magistrate Judge”. Failure to comply
with these provisions may result in the district judge’s refusal to consider the objections.
Dated: January 24, 2018
/s/ Jeremiah J. McCarthy
JEREMIAH J. MCCARTHY
United States Magistrate Judge

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