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Manik v. Avram

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


December 3, 2007

MILAN MANIK AND OLGA MANIK, 32BJ, PLAINTIFFS,
v.
ROSE ASSOCIATE SIMON AVRAM; UNION DELEGATE FRANK BOOTH; ROSE DELEGATE, ROSE ASSOCIATES, INC., AND SEIU LOCAL DEFENDANTS.

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

MEMORANDUM OPINION AND ORDER

Milan Manik ("Mr. Manik") and Olga Manik ("Mrs. Manik") filed this action on January 23, 2006. They brought claims pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000(e) et seq., and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112 et seq. against Mr. Manik's former employer, Rose Associates, Inc. ("Rose Associates"); Simon Avram ("Avram"), Mr. Manik's former supervisor; Frank Booth ("Booth"), Mr. Manik's union representative; and later against Local 32BJ of the Service Employees International Union ("Union").

An Opinion dated October 13, 2006 dismissed the claims against the Union, Booth, and Avram and all claims brought by Mrs. Manik because claims involving these parties had not been brought before the Equal Employment Opportunities Commission ("EEOC") or an authorized state agency. Manik v. Avram, No. 06 Civ. 477 (DLC), 2006 WL 2942854 (S.D.N.Y. Oct. 13, 2006) ("October 2006 Opinion"). The laws that govern the Maniks' action, Title VII and the ADA, do not allow a plaintiff to bring a claim against a defendant in federal court if the plaintiff has not first exhausted the remedies available from the EEOC or an authorized state agency. See id. at *3-4.

A Memorandum Opinion of November 28, 2006 denied the Maniks' motion for reconsideration of the dismissal of Mr. Manik's claims against the Union. Manik v. Avram, No. 06 Civ. 477 (DLC), 2006 WL 3458090 (S.D.N.Y. Nov. 28, 2006) ("November 2006 Opinion"). That opinion explained that (1) newly submitted evidence could not be considered on a motion for reconsideration, (2) even if Mr. Manik's EEOC complaint against the Union were considered, it would not entitle him to have his claims against the Union reinstated because it was not filed within the 180-day time limit for filing EEOC complaints, and (3) the Maniks' argument that the gravity of their Complaint should merit consideration had been rejected in the original motion to dismiss ruling. Id.

Following the October and November 2006 Opinions, the only claims that survived were Mr. Manik's claims against Rose Associates. Milan Manik and Rose Associates agreed to settle the case, and on January 30, 2007 they signed a Stipulation of Dismissal with prejudice. Mrs. Manik also signed this stipulation even though it was not necessary for her to do so, her claims having been dismissed. On February 13, the Court ordered that the case be closed.

On April 24, 2007, the Maniks filed an affirmation "in opposition to the motion date[d] 1[/]30/07." By an Order dated May 3, this affirmation was construed as a motion to vacate the January 30 stipulation of dismissal, and the motion was referred to Magistrate Judge Ellis. On May 16, Judge Ellis issued a report and recommendation ("Report"), recommending that this motion be denied. The Report was entered on the docket sheet on May 17. The Maniks filed objections to the Report, which were dated May 31 but filed on June 4.

The court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). The court shall make a de novo determination of the portions of the report to which petitioner objects. 28 U.S.C. § 636(b)(1); see United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). To accept those portions of the report to which no timely objection has been made, "a district court need only satisfy itself that there is no clear error on the face of the record." Figueroa v. Riverbay Corp., No. 06 Civ. 5364(PAC), 2006 WL 3804581, at *1 (S.D.N.Y. Dec. 22, 2006) (citation omitted).

The Report denied the motion to vacate because it found that the Maniks were not seeking to pursue their claims against Rose Associates. Rather, it found that the Maniks wanted to pursue claims against the Union and Booth, both of whom had been dismissed from the case pursuant to the October 2006 Opinion. It therefore recommended that the motion to vacate the Stipulation of Dismissal be denied.

Even if the issues addressed in the Report are reviewed de novo, the Report's reasoning is sound. The motion to vacate and the Maniks' objections to the Report present no ground that would support vacating the settlement with Rose Associates. See Fed.R.Civ.P. 60(b). Even if Mr. and Mrs. Manik have good reason to be angry with the Union and Booth, moreover, the law does not permit them to pursue their claims against either of these defendants. See November 2006 Opinion, 2006 WL 3458090; October 2006 Opinion, 2006 WL 2942854, at *3-4 & n.4. Vacating Mr. Manik's settlement with Rose Associates would not change this result.

CONCLUSION

The report is adopted in full. The case will remain closed.

SO ORDERED.

New York, New York

20071203

© 1992-2007 VersusLaw Inc.



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