UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
January 24, 2011
MALIK AZ'REAL MOSBY, PLAINTIFF,
MARSHALL TRABOUT, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Hood, J.
Plaintiff has filed a document which has been construed as a motion for default judgment pursuant to Fed. R. Civ. P. 55(b)(2) [Dkt. Nos. 93 and 98]. Defendant Marshall Trabout, M.D. has now moved the Court to set aside the default previously entered [Dkt. No. 105]. United States Magistrate Judge George H. Lowe to whom this matter has been referred for initial consideration has filed his Report and Recommendation [Dkt. No. 113] to which Plaintiff has filed objections [Dkt. No. 114]. Having considered the matter de novo in light of Plaintiff's objections, and being advised:
IT IS ORDERED herein as follows:
(1) that Defendant Trabout's motion to set aside the default [Dkt. No.105] be, and the same hereby is, GRANTED inasmuch as it is well-settled in the Second Circuit that defaults are not favored, and that there is a strong preference for resolving disputes on their merits. Brien v. Kullman Indus., Inc., 71 F.3d 1073, 1077 (2d Cir. 1995).
(2) that Plaintiff's motion for default judgment [Dkt. Nos. 93 and 98] be, and the same hereby is, DENIED AS MOOT.
(3) that Plaintiff's motion for an order directing the United States Marshal to bring Defendant to court [Dkt. No. 101] be, and the same hereby is, DENIED AS MOOT.
Sitting by Designation
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