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Baumgarten v. County of Suffolk

May 15, 2007

BARBARA BAUMGARTEN, PLAINTIFF,
v.
THE COUNTY OF SUFFOLK AND SUFFOLK COUNTY DEPARTMENT OF SOCIAL SERVICES, DEFENDANTS.



The opinion of the court was delivered by: Seybert, District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION

The Court is in receipt of Magistrate Judge A. Kathleen Tomlinson's Report and Recommendation for Plaintiff's order to show cause for a preliminary injunction and temporary restraining order against Defendants the County of Suffolk ("County") and Suffolk County Department of Social Services ("DSS") (collectively, "Defendants"), dated February 20, 2007 ("Report and Recommendation"). Presently pending before the Court is Plaintiff's objections to Magistrate Judge Tomlinson's recommendation that the Court deny Plaintiff's motion for a preliminary injunction and temporary restraining order.*fn1

BACKGROUND

The Report and Recommendation sets forth the facts of this case in a thorough manner, and therefore, the Court will not recite them. Additional facts, which are important to this Court's determination, are as follows.

In addition to the requests Plaintiff made to DSS for rent arrears, which are detailed in the Report and Recommendation, Plaintiff also sought a "Housing Relocation Package" from DSS two days prior to filing the Order to Show Cause. Specifically, Plaintiff sought security and one month's rent to help her relocate. In her Complaint, Plaintiff contends that she was denied the request for relocation costs. (Compl. ¶ 4.)

As set forth in the Report and Recommendation, on February 13, 2007, Chief Judge Melanie Cyganowski issued an order lifting the automatic stay previously imposed pursuant to 11 U.S.C. § 362 when Plaintiff filed a Chapter 7 bankruptcy petition in the United States Bankruptcy Court for the Eastern District of New York, In re: Barbara Ann Baumgarten, No. 8-06-73026. As a result of the February 13 order, the automatic stay was terminated 10 days after the date of the order. As previously mentioned, the Report and Recommendation was issued on February 20, 2007, and Plaintiff had 10 days from the date of service to file objections to the Report and Recommendation.

Subsequent to the issuance of the Report and Recommendation, on February 23, 2007, Plaintiff hand-delivered a letter requesting an "immediate stay" of her eviction and a "stay" on the Report and Recommendation, which this Court construed as a second application for a temporary restraining order. Although Plaintiff's request for a temporary restraining order was no longer premature because Judge Cyganowski had ordered that the automatic stay be terminated, this Court denied Plaintiff's request because she failed to show a likelihood of success on the merits or that any serious questions existed regarding the merits. See Order, dated February 23, 2007. In addition, Plaintiff was advised that she had 10 days from the date she was served the Report and Recommendation within which to file her objections, which she filed on March 6, 2007.

On February 27, 2007, Plaintiff was given notice by the Sheriff of Suffolk County that she had 72 hours to vacate 404 Union Avenue, Holbrook, New York. Plaintiff placed her household possessions in a storage unit on March 2, 2007 and sought emergency assistance from DSS on March 5, 2007. In her emergency need request form, Plaintiff requested emergency housing and funds to pay for the storage unit. The status of such request is unknown to this Court.

DISCUSSION

I. Standard Of Review

"When evaluating the report and recommendation of a magistrate judge, the district court may adopt those portions of the report to which no objections have been made and which are not facially erroneous." Walker v. Vaughan, 216 F. Supp. 2d 290, 291 (S.D.N.Y. 2002) (citation omitted). A party may serve and file specific, written objections to a magistrate's report and recommendation within ten days of receiving the recommended disposition. See FED. R. CIV. P. 72(b). Upon receiving any timely objections to the magistrate's recommendation, the district "court may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge." 28 U.S.C. §636(b)(1)(C); see also Fed. R. Civ. P. 72(b). A party that objects to a report and recommendation must point out the specific portions of the report and recommendation to which they object. See Barratt v. Joie, No. 96-CV-324, 2002 U.S. Dist. LEXIS 3453, at *2 (S.D.N.Y. March 4, 2002) (citations omitted).

When a party raises an objection to a magistrate judge's report, the Court must conduct a de novo review of any contested sections of the report. See Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991). However, "[w]hen a party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error." Barratt, 2002 U.S. Dist. LEXIS 3453, at *2 (citations omitted).

Plaintiff's objections are both general and specific in nature and challenge the Report and Recommendation in its entirety. The Court, therefore, will engage in a de novo review of Judge Tomlinson's Report and Recommendation. Under the de novo standard, the Court will make an independent determination of this controversy, giving no deference to any previous resolution. See Nomura Sec. Int'l, Inc. v. E*Trade Sec., Inc., 280 F. Supp. 2d 184, 198 (S.D.N.Y. 2003). The Court is not limited to ...


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