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SICURELLA v. CHATER

September 7, 1995

VINCENT SICURELLA, Plaintiff, -vs- SHIRLEY S. CHATER, Commissioner of Social Security, 1 Defendant.


The opinion of the court was delivered by: JOHN T. ELFVIN

 Pursuant to FRCvP *fn2" 60(b) the plaintiff moves for relief from Judgment following this Court's Memorandum and Order filed January 11, 1995 ("the January 11th Order). He further asks that this Court then reconsider his objections to the Report and Recommendation ("the R&R") of Magistrate Judge Carol E. Heckman, filed November 9, 1994 and entered November 10th, wherein the plaintiff was denied disability benefits. This Court had granted the defendant's motion for judgment on the pleadings and accepted the R&R in toto, with the untimeliness of the plaintiff's objections the key consideration. Upon review of the record, the relevant law and the submissions of the parties, this Court agrees that the plaintiff's objections were timely and will grant the requested relief. *fn3"

 The R&R was entered on November 10, 1994. Agreeing with the defendant, this Court earlier stated that

 
"A failure to file timely objections to a magistrate judge's Report and Recommendation may be fatal. See Thomas v. Arn, 474 U.S. 140, 155, 88 L. Ed. 2d 435, 106 S. Ct. 466 (1985) (court of appeals may deny review to a petitioner who "was notified in unambiguous terms of the consequences of a failure to file, and deliberately failed to file nevertheless"), rehearing denied, 474 U.S. 1111, 88 L. Ed. 2d 933, 106 S. Ct. 899 (1986); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.) (holding that petitioner's failure to file timely objections to magistrate judge's report and recommendation barred further judicial review and no circumstances warranted excusing the default in the interests of justice), cert. denied, U.S. ,121 L. Ed. 2d 696, 113 S. Ct. 825 (1992); Small v. Secretary of Health & Human Services, 892 F.2d 15, 16 (2d Cir. 1989) (per curiam) (confirming previously stated rule that "failure to object timely to a magistrate's report operates as a waiver of any further judicial review of the magistrate's decision"); Wesolek v. Canadair, Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983) ("When a party fails to object timely to a magistrate's recommended decision, it waives any right to further judicial review of that decision."). The January 11th Order at 1-2.

 The R&R refers to the necessary statutory and procedural provisions and states: "ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of this Court within ten (10) days after receipt of a copy of this Report and Recommendation in accordance with the above statute, Fed.R.Civ.P. 72(b) and Local Rule 30(a)(3) [now Local Rule 72.3(a)(3)]." (Emphasis added.) The plaintiff argues that 28 U.S.C. § 636(b) necessitates that the timeliness calculation be based on the date of service and not on the date of receipt and that under FRCvP 6(e) he is therefore entitled to the additional three days permitted when, as here, the R&R was served by mail. This Court agrees.

 Under the constraints of 28 U.S.C. § 636(b), FRCvP 72(b) and Local Rule of Civil Procedure 72.3(a) (all of which require filed objections within ten days of "being served"), as calculated under FRCvP 5(b), 6(a) & 6(e), the plaintiff's objections were timely. Under the federal rules, this calculation is made as follows: ten days from the date of service (i.e., the date that the R&R was entered and service by mail was made -- November 10, 1994) *fn4" excluding the date of service and intermediate Saturdays, Sundays and Holidays (Veterans Day and Thanksgiving Day), is November 28th and the addition of three days under FRCvP 6(e) makes the plaintiff's "drop-dead" date December 1, 1994. See, e.g., Nalty v. Nalty Tree Farm, 654 F. Supp. 1315, 1317-1318 (S.D.Ala. 1987) (applying above analysis). This plaintiff met such deadline.

 Addressing the plaintiff's ambiguity argument would be an unnecessary semantic legerdemain. Despite this Court's prior Order and the practice in this District, a timeliness calculation based on the date of receipt instead of the date of service is plainly contrary to the controlling statutory provision and rules of procedure. *fn5" This Court concludes that the plaintiff's objections were filed in a timely manner under 28 U.S.C. § 636, FRCvP 5, 6 & 72 and Rule 72.3 of this Court's Local Rules of Civil Procedure.

 Accordingly, it is hereby ORDERED that the plaintiff's motion for relief from judgment is granted to the extent that it seeks a review by this Court of his objections to the Magistrate Judge's Report and Recommendation and that such objections are deemed submitted. *fn6"

 DATED: Buffalo, N.Y.

 September 7, 1995

 John T. Elfvin

 U.S.D.J ...


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