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Leeward Construction, Inc. v. Sullivan West Central School District

May 20, 2010

LEEWARD CONSTRUCTION, INC., PLAINTIFF,
v.
SULLIVAN WEST CENTRAL SCHOOL DISTRICT, DEFENDANT.
SULLIVAN WEST CENTRAL SCHOOL DISTRICT, THIRD-PARTY PLAINTIFF,
v.
TURNER CONTSTRUCTION COMPANY AND THE HILLIER GROUP ARCHITECTURE, NEW YORK, P.C., THIRD-PARTY DEFENDANTS.



REPORT AND RECOMMENDATION ORDER ADOPTING

Seibel, J.

Before the Court is the Report and Recommendation ("R&R") of Magistrate Judge Lisa Margaret Smith, dated March 10, 2010. (Doc. 95.) Third-Party Plaintiff Sullivan West Central School District ("SWCSD") filed Objections to the R&R on March 29, 2010, (Doc. 96 ("Objections")), and Third-Party Defendant Hillier Group Architecture, New York, P.C. ("Hillier") responded thereto on April 12, 2010, (Doc. 98 ("Response")). The parties' familiarity with prior proceedings and the issues in this case is presumed.

A district court reviewing a magistrate judge's report and recommendation "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). Parties may raise objections to the magistrate judge's report and recommendation, but they must be "specific," "written," and submitted "[w]ithin 14 days after being served with a copy of the recommended disposition." Fed. R. Civ. P. 72(b)(2); accord 28 U.S.C. § 636(b)(1). Insofar as a report and recommendation deals with a dispositive motion, a district court must conduct a de novo review of those portions of the report or specified proposed findings or recommendations to which timely objections are made. 28 U.S.C. § 636(b)(1); see Fed. R. Civ. P. 72(b)(3) ("The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions."). The district court may adopt those portions of a report and recommendation to which no timely objections have been made, provided no clear error is apparent from the face of the record. See Lewis v. Zon, 573 F. Supp. 2d 804, 811 (S.D.N.Y. 2008); Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985); Fed. R. Civ. P. 72 advisory committee's note (b).

Judge Smith's comprehensive R&R dealt with many issues:

1. SWCSD's motion for summary judgment regarding:

a. Hillier's liability for failure to delineate federally regulated wetlands in site drawings;

b. Hillier's liability for defects in:

1. stormwater management plans; and

2. erosion and sediment ("E&S") control plans;

c. Hillier's counterclaims for $300,000 in additional fees for redesign of the high school and value engineering after the "bid bust"; and

2. Hillier's motion for summary judgment regarding:

a. SWCSD's failure to mitigate damages;

b. SWCSD's claim for additional costs for change orders resulting from defective design;

c. SWCSD's derivative claim to the extent it is based on an alleged ...


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