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Morpurgo v. Incorporated Village of Sag Harbor

November 8, 2007

ANNSELM MORPURGO, M.A., PLAINTIFF,
v.
THE INCORPORATED VILLAGE OF SAG HARBOR, AND GREGORY N. FERRARIS AS APPOINTED MAYOR, EDWARD DEYERMOND AS RETIRING ELECTED MAYOR, AND J. DOE #1 THROUGH #N OF THE ELECTED BOARD OF TRUSTEES, SAG HARBOR VILLAGE POLICE, AND THOMAS FABIANO AS POLICE CHIEF, POLICE OFFICER PATRICK MILAZZO, AND SAG HARBOR VILLAGE BUILDINGS DEPARTMENT, AND TIMOTHY PLATT AS FIRE MARSHAL/CODE ENFORCER, AND BUILDING INSPECTOR ALBERT DANIELS AS MATERIAL WITNESS, SUFFOLK COUNTY WATER AUTHORITY, AND PAUL GREENWOOD AS ASSISTANT SUPERINTENDENT, CALECA & TOWNER, P.C., ANDREW T. TOWER, ESQ., JOHN JERMAIN MEMORIAL LIBRARY, GREGORY N. FERRARIS AS PRESIDENT OF THE BOARD OF TRUSTEES, AND J. DOE #1 THROUGH #N OF THE APPOINTED OR ELECTED BOARD OF TRUSTEES, JOHN JERMAIN FUTURE FUND, GAIL SLEVIN AND GREGORY N. FERRARIS, CPA, LLC, AS CONTACTS, AND J. DOE #1 THROUGH #N AS SUBSCRIBERS, GREGORY N. FERRARIS, THOMAS FABIANO, PATRICK MILAZZO, TIMOTHY PLATT, PAUL GREENWOOD, CHRISTINE STANLEY A/K/A HELGA MORPURGO, ANDREW T. TOWNER, ESQ., MICHAEL A. WOLOHOJIAN, PETER DARROW, AND OTHER PERSONS J. DOE #1 THROUGH #N AS OTHER CONSPIRING INDIVIDUALS UPON DISCOVERY, 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, dated October 11, 2007 ("Report and Recommendation"). Presently pending before the Court is Plaintiff's objections, filed with the Court on October 17, 2007, to Magistrate Judge Tomlinson's recommendation that the Court deny Plaintiff's motion for a preliminary injunction and temporary restraining order and abstain from exercising jurisdiction over this action. Defendants had ten days in which to respond to Plaintiff's objections. The time to respond has passed and none of the Defendants filed a response.

BACKGROUND

The Report and Recommendation sets forth the facts and procedural background 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.

On October 12, 2007, the day after the Report and Recommendation was issued, the partition auction was held. The winning bid for the premises at issue here was $1,460,000.00.

(Pl.'s Obj. to R&R ¶ 2.) Based upon representations made by Plaintiff, it is believed that the closing is scheduled for November 12, 2007.

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 mainly general in nature and challenge the recommendation made by Magistrate Judge Tomlinson -- to deny the request for a preliminary injunction and temporary restraining order. Although Plaintiff reiterates the arguments she made to Magistrate Judge Tomlinson in support of her request for a preliminary injunction and temporary restraining order and offers additional statements of how she perceives the facts, the Court is able to decipher only three specific objections to the Report and Recommendation. The Court, therefore, reviews the majority of the Report and Recommendation for clear error.

As best the Court can tell, Plaintiff's specific objections to the Report and Recommendation are that (1) it was issued nearly six weeks after the preliminary injunction hearing and on the eve of the partition auction, (2) Magistrate Judge Tomlinson narrowly construed Plaintiff's claims and arguments and (3) the "Factual Background" section of the Report and Recommendation placed undue weight on Defendant Andrew Towner's Affirmation in Opposition in explaining that Plaintiff came to this Court to seek relief she could not obtain in state court. The remainder of Plaintiff's objections simply restate arguments made to and considered by Magistrate Judge Tomlinson or deal with issues not relevant to the underlying request. The specific objections are to be reviewed de novo. Under the de novo standard, the Court must make an independent determination of the specified issues, 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 consideration of evidence presented to the magistrate judge, but may review the entirety of the record. See Fed. R. Civ. P. 72(b). Before addressing Plaintiff's specific objections, however, the Court first analyzes whether it should abstain from exercising jurisdiction.

II. Younger Abstention

Before the Court can consider the pending preliminary injunction motion, the Court must first determine whether it should exercise jurisdiction over the underlying action. As noted by Magistrate Judge Tomlinson, Plaintiff's request for emergency relief brings to light the fact that many of the allegations raised by Plaintiff in the instant action are already the subject of litigation in the Supreme Court of the State of New York, County of Suffolk, Index No. 05554-03 (the "State ...


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