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Hui Hui Yu, Cheng Kai Yu, and Cheng Kai Yu Revocable Trust v. Town of Southold In Suffolk County New York

May 1, 2013

HUI HUI YU, CHENG KAI YU, AND CHENG KAI YU REVOCABLE TRUST, PLAINTIFFS,
v.
TOWN OF SOUTHOLD IN SUFFOLK COUNTY NEW YORK, SCOTT A. RUSSELL (CHIEF EXECUTIVE), SOUTHOLD TOWN JUSTICE COURT, WILLIAM H. PRICE, JR. (CHIEF JUSTICE), RUDOLPH H. BRUER (JUSTICE), THE OFFICE OF THE TOWN ATTORNEY, MARTIN FINNEGAN, ESQ. (TOWN ATTORNEY), LORI HULSE [MONTEFUSCO], ESQ. (ASSISTANT TOWN ATTORNEY), THE SOUTHOLD TOWN BOARD OF TRUSTEES, JILL M. DOHERTY (PRESIDENT, TRUSTEE), JAMES KING (PRESIDENT, TRUSTEE), THE SOUTHOLD TOWN POLICE DEPARTMENT, CARLISLE COCHRAN (CHIEF), FRANK KRUSZESKI (LIEUTENANT), DONALD DZENKOWSKI (BAY CONSTABLE), ANDREW C. EPPLE, JR. (BAY CONSTABLE), DAVID M. OKULA (POLICE), SOUTHOLD TOWN ZONING BOARD, SOUTHOLD TOWN TAX RECEIVER AND ASSESSORS, JOHN DOES AND JANE DOES, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES, DEFENDANTS.



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

MEMORANDUM & ORDER

Currently pending before the Court is Magistrate Judge E. Thomas Boyle's Report and Recommendation ("R&R"), issued on December 7, 2012.*fn1 For the following reasons, the R&R is ADOPTED in its entirety.

BACKGROUND

The Court assumes familiarity with the underlying facts and procedural background of this case, which are described in detail in this Court's Memorandum and Order dated August 10, 2012 (the "Summary Judgment Order," Docket Entry 74) as well as in Judge Boyle's R&R (Docket Entry 90). Briefly, Plaintiffs Hui Hui Yu ("Mrs. Yu" or "Plaintiff"), Cheng Kai Yu ("Dr. Yu"), and the Cheng Kai Yu Revocable Trust (the "Trust" and, collectively, "Plaintiffs") commenced this action on June 25, 2010. At that time, Mrs. Yu, an attorney admitted to practice in this District, filed a Notice of Appearance on behalf of all Plaintiffs.

Essentially, this case began as a civil rights case arising out of Plaintiffs' being cited for making unauthorized improvements to their wetlands property, Plaintiffs' subsequent unsuccessful attempts to obtain permits, and the legal consequences that flowed from Plaintiffs' unauthorized improvements. Although Plaintiffs initially named nineteen separate defendants and asserted a number of claims, the Court's Summary Judgment Order drastically changed the landscape of this case. In that Order, the Court granted the various defendants summary judgment on almost all of Plaintiffs' claims. (Summary Judgment Order at 17.) In fact, the only remaining claim thereafter was Mrs. Yu's claim for excessive force against Defendant Lieutenant Frank Kruszeski ("Defendant"). (Summary Judgment Order at 16.) According to Mrs. Yu, she had been sitting in the public area of the Town Hall Annex when Defendant grabbed her arm, pulled her from the chair, and forced her outside. (Am. Compl. at 16.)

Litigation in this case thus proceeded on the single remaining claim. Following the Summary Judgment Order, Mrs. Yu has repeatedly moved to stay the proceedings and to withdraw as counsel. (See R&R at 2 (citing Docket Entries 76, 79, 82, 84).) Her requests, however, have been denied and Judge Boyle has directed Mrs. Yu to file a pretrial order on three different occasions. (R&R at 2.) In his most recent Order on this issue, Judge Boyle warned Mrs. Yu that her failure to comply with the Court's orders would expose her to sanctions, including potential dismissal of her remaining cause of action. (Nov. 9, 2012 Order, Docket Entry 86.) To date, Mrs. Yu has yet to file a pretrial order.

Accordingly, Judge Boyle recommends that Mrs. Yu be precluded from introducing any exhibits at trial and from calling any witnesses at trial and, further, that the Court dismiss this case based upon Mrs. Yu's refusal to comply with previous orders. (R&R at 2.)

DISCUSSION

The Court will first address the applicable standard of review before turning to Judge Boyle's recommendation of dismissal.

I. Standard of Review

"When evaluating the report and recommendation of a magistrate judge, the district court may adopt those portions of the report to which no objections have been made and which are not facially erroneous." Walker v. Vaughan, 216 F. Supp. 2d 290, 291 (S.D.N.Y. 2002) (citation omitted). A party may serve and file specific, written objections to a magistrate's report and recommendation within fourteen days of receiving the recommended disposition. See FED. R. CIV. P. 72(b)(2). Upon receiving any timely objections to the magistrate's 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)(C); see also FED.R.CIV. P. 72(b)(3). A party that objects to a report and recommendation must point out the specific portions of the report and recommendation to which they object. See Barratt v. Joie, No. 96-CV-0324, 2002 WL 335014, at *1 (S.D.N.Y. Mar. 4, 2002) (citations omitted).

When a party raises an objection to a magistrate judge's report, the Court must conduct a de novo review of any contested sections of the report. See Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991). But if a party "makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error." Pall Corp. v. Entegris, Inc., 249 F.R.D. 48, 51 (E.D.N.Y. 2008) (internal quotation marks and citation omitted). Furthermore, even in 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." Kennedy v. Adamo, No. 02-CV-1776, 2006 WL 3704784, at *1 (E.D.N.Y. Sept. 1, 2006) (internal quotation marks and citation omitted).

II. Recommendation of Dismissal

Before turning directly to the recommendation of dismissal, the Court first notes Plaintiff's submissions regarding the R&R. On December 24, 2012, seventeen days after Judge Boyle's R&R, Plaintiff moved for an extension of time to file her objections. (Docket Entry 91.) On January 9, 2013, Plaintiff again wrote to the Court, noting that she had not yet read the R&R, but explaining that she and her husband suffered from some mental and physical ailments resulting in her inability to timely respond. (Docket Entry 92.) Despite the fact that both letters were already ...


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