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Jon Sasmor v. Steven Powell

March 31, 2013


The opinion of the court was delivered by: Matsumoto, nited States District Judge:


On September 26, 2011, pro se plaintiff Jon Sasmor commenced this action pursuant to 42 U.S.C. §§ 1983, 1985 and 1988, seeking injunctive and declaratory relief and damages arising from the execution of certain eviction warrants pursuant to section 749(1) of the New York Real Property Actions and Proceedings Law*fn1 ("RPAPL") at a building located at 287 Franklin Avenue (the "residence"), in Brooklyn, New York, in which plaintiff had a lease for one room. (ECF No. 1, Complaint.) Plaintiff paid the filing fee to commence this action. On October 11, 2011, plaintiff amended his complaint (ECF No. 6, Amended Complaint, filed 10/11/2011 ("Am. Compl.")) after the court denied his previous request for a temporary restraining order that accompanied plaintiff's initial complaint (ECF No. 5, Order Denying Request for Temporary Restraining Order, dated 9/26/2011).

Plaintiff's amended complaint names as defendants the private management company and three individuals who own and manage the residence, Henry Management, LLC, Chaim Goldberger, Isacc Teitelbaum, and Abraham Schneelbag (the "Private Defendants"); the New York City Marshal who executed the eviction warrants at issue, Steven Powell; and a state court judge, Fern Fisher, and a state court clerk, Carol Alt (together, the "Judicial Defendants"), who were nominally involved in the eviction proceedings that precipitated the instant action. (See generally Am. Compl.) These three groups of defendants moved separately to dismiss plaintiff's complaint.*fn2 (ECF Nos. 38, 45, 48.) Plaintiff opposed each of defendants' motions to dismiss (ECF Nos. 51-1, 52-1, 53-1), and the moving defendants all submitted reply briefs in support of their respective motions (ECF Nos. 44, 47, 49).

Additionally, plaintiff moved for a preliminary injunction barring any further evictions (not just those that affect him) in New York state pursuant to RPAPL § 749, which plaintiff claims is unconstitutional. (ECF No. 54.) The Judicial Defendants opposed plaintiff's motion for a preliminary injunction (ECF No. 50), and plaintiff submitted a reply thereto (ECF No. 55-1). On August 31, 2012, the court referred all of the aforementioned motions to Magistrate Judge James Orenstein for a report and recommendation. (Order Referring Motion, dated 8/31/2012.)

-JO Document 66 Filed 03/31/13 Page 3 of 10 PageID #: 1627


Presently before the court is the Report and Recommendation issued by Magistrate Judge Orenstein on February 21, 2013. (ECF No. 61, Report and Recommendation, dated 2/21/2013 ("R&R").) Judge Orenstein recommended that the court deny plaintiff's motion for a preliminary injunction, grant all of the defendants' motions to dismiss in their entirety, and dismiss plaintiff's amended complaint in its entirety, with prejudice to all of plaintiff's federal claims therein. (R&R at 1, 22.) As explicitly stated in the R&R, any objections to the R&R's recommendations were to be filed by March 11, 2013 (id. at 22), but the court extended the deadline to March 15, 2013 in response to plaintiff's request for more time to file his objections (Order, dated 3/6/2013). Because the pro se plaintiff has been afforded the unusual privilege of being permitted to file his submissions electronically, plaintiff was served with the R&R via the ECF filing system on the same day the R&R was issued. (R&R at 22, n.9.)

On March 15, 2013, plaintiff timely filed his objections to Judge Orenstein's recommendations in the R&R. (ECF No. 63, Plaintiff's Objections, filed 3/15/2013 ("Pl. Obj.").) As discussed below, plaintiff has presented twenty objections to Judge Orenstein's recommendations in the R&R. (See generally Pl. Obj.)

On March 21, 2013, the Judicial Defendants and the Private Defendants timely filed their respective responses to plaintiff's objections to the R&R. (ECF No. 64, Judicial Defendants' Response to Plaintiff's Objections, filed 3/21/2013; ECF No. 65, Private Defendants' Response to Plaintiff's Objections, filed 3/21/2013.) Defendant Powell did not file any response to plaintiff's objections to the R&R.

I.Legal Standard

In reviewing a Report and Recommendation, the district 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). Where a party makes specific and timely objections to a magistrate judge's findings or recommendations as to dispositive motions, the district court must apply a de novo standard of review to the portions of the Report and Recommendation to which the objection is made. Fed. R. Civ. P. 72(b); Mazzei v. Abbott Labs. & Co., Nos. 10-cv-1011, 10-cv-2233, 2012 WL 1101776, at *1 (E.D.N.Y. Apr. 2, 2012) (citing Arista Records, LLC v. Doe 3, 604 F.3d 110, 116 (2d Cir. 2010)); see also 28 U.S.C. § 636(b)(1). However, "'general or conclusory objections, or objections which merely recite the same arguments presented to the magistrate judge, are reviewed for clear error.'" Caldarola v. Town of Smithtown, No. 09-cv-272, 2011 WL 1336574, at *1 (E.D.N.Y. Apr. 4, 2011); see also Vega v. Artuz, No. 97-cv-3775, 2002 WL 31174466, at *1 (S.D.N.Y. Sept. 30, 2002) (noting that "objections that are merely perfunctory responses argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original [papers] will not suffice to invoke de novo review"). Additionally, the court is not required to review the factual findings or legal conclusions of the magistrate judge as to which no proper objections are interposed. Caldarola, 2011 WL 1336574, at *1 (citing Thomas v. Arn, 474 U.S. 140, 150 (1985)). Furthermore, even on a de novo review of a party's specific objections, the court ordinarily will not consider "'arguments, case law and/or evidentiary material which could have been, but [were] not, presented to the magistrate judge in the first instance.'" J.P.T. Auto., Inc. v. Toyota Motor Sales, U.S.A., Inc., 659 F. Supp. 2d 350, 352-53 (E.D.N.Y. 2009) (quoting Kennedy v. Adamo, No. 02-cv-1776, 2006 WL 3704784, at *1 (E.D.N.Y. 2006)).


As an initial matter, the court notes that all of plaintiff's arguments in support of his twenty objections to Judge Orenstein's recommendations in the R&R have been raised in plaintiffs' various oppositions to the defendants' motions to dismiss, and also significantly overlap with the arguments plaintiff advanced in support of his motion for a preliminary injunction. For example, plaintiff's rehashes at length in his objection to Judge Orenstein's finding that plaintiff lacks standing to bring claims under to 42 U.S.C. § 1983 the same arguments he previously raised in all three of his oppositions to the motions to dismiss (ECF No. 51-1, at 22-42; ECF No. 52-1, at 5-31; ECF No. 53-1, at 3-25) and in support of plaintiff's motion for a preliminary injunction (ECF No. 54-2, at 10-32), to wit, plaintiff's claim that defendants violated his Fourth Amendment rights, his "property" interests, his "liberty interests" guaranteed by "procedural due process," his "privacy" interests, his equal protection rights, and his substantive due process guarantees by issuing and executing eviction warrants pursuant to the purportedly unconstitutional "all persons" warrant statute, RPAPL § 749. (Pl. Obj. at 2-5, 20-21.) Similarly, plaintiff's instant objections reciting his view that he has standing and is not collaterally estopped, precluded, or otherwise "bound" by the state courts' judgments regarding the eviction proceedings for plaintiff's own apartment and the apartments of his neighbors (Pl. Obj. at 5-20, 22-26), merely repeat plaintiff's arguments in opposition to defendants' motions to dismiss (ECF No. 51-1, at 9, 14-15, 43-44; ECF No. 52-1, at 19, n.40, 27-28, n.54, 41-42; ECF No. 53-1, at 20-21, nn.34 & 30), and in support of his preliminary injunction request (ECF No. 54-2, at 24-25, 27-28). The same is true of plaintiff's objections that the R&R misapplied or misunderstood RPAPL § 711, N.Y. City Admin. Code § 26-51, and New York's landlord-tenant common law (Pl. Obj. at 27-32), which are based on the same contentions plaintiff proffered in his oppositions to the motions to dismiss (ECF No. 51-1, at 26-29, nn.42-43 & 45, 35-36; ECF No. 52-1, at 10-13, 25-26; ECF No. 53-1, at 4-7, nn.7 & 9, 18-19) and his ...

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