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Reyes v. Astrue

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


September 9, 2008

NELSON J. REYES, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

The opinion of the court was delivered by: George B. Daniels, District Judge

ORDER

Pro se plaintiff Nelson J. Reyes commenced this action seeking a judicial review of a Commissioner of Social Security's finding that he was not entitled to supplemental security income. The Commissioner filed a motion to dismiss plaintiff's complaint as untimely. The matter was referred to Magistrate Judge Ronald L. Ellis for a Report and Recommendation ("Report"). Magistrate Judge Ellis recommended that defendant's motion be granted and that plaintiff's complaint be dismissed as untimely. This Court adopts the Report's recommendation that the motion be granted, and the complaint is dismissed as untimely.

The magistrate judge found that plaintiff "filed his pro se civil action on October 29, 2007, two months after the limitations expired." (Report at 2). Magistrate Judge Ellis also found that while plaintiff "stated that he filed late because he lost his paperwork for a month and then found it around September 14, 2007," plaintiff failed to request an extension. (Report at 3). The magistrate judge properly determined that "the misplacement of paperwork does not rise to the level necessary to demonstrate extraordinary circumstances" for the purpose of tolling the statute of limitations. Id..

20080909

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