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Bricklayers v. Rockmore Contracing Corp. and Hanover Insurance

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK


May 15, 2013

BRICKLAYERS INSURANCE AND WELFARE FUND, BRICKLAYERS PENSION FUND, BRICKLAYERS SUPPLEMENTAL ANNUITY FUND, BRICKLAYERS AND TROWEL TRADES INTERNATIONAL PENSION FUND,
NEW YORK CITY AND LONG ISLAND JOINT APPRENTICESHIP AND TRAINING FUND, INTERNATIONAL MASONRY INSTITUTE, AND JEREMIAH SULLIVAN, JR., IN HIS FIDUCIARY CAPACITY AS ADMINISTRATOR, BRICKLAYERS LOCAL 1, INTERNATIONAL UNION OF BRICKLAYERS AND ALLIED CRAFT WORKERS, AND BRICKLAYERS LABOR MANAGEMENT RELATIONS COMMITTEE, PLAINTIFFS,
v.
ROCKMORE CONTRACING CORP. AND HANOVER INSURANCE GROUP, DEFENDANTS.
ROCKMORE CONTRACTING CORP., THIRD-PARTY PLAINTIFF,
v.
R. SMITH RESTORATION, INC., AND THE ESTATE OF RICHARD SMITH, THIRD-PARTY DEFENDANTS.

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

MEMORANDUM AND ORDER

On March 8, 2013, Magistrate Judge Levy issued a report and recommendation ("R&R") recommending that Rockmore Contracting Corp. ("Rockmore") be awarded $45,938.10 in damages on their third-party claims against R. Smith Restoration, Inc. ("R. Smith"), and the Estate fo Richard Smith ("the Estate"), plus prejudgment interest through the entry of judgment. The R&R recited that "[a]ny objections to this Report and Recommendation must be filed . . . within fourteen days of receipt hereof," and that "[f]ailure to file timely objections may waive the right to appeal the District Court's Order." R&R at 10.

On March 12th, Rockmore's counsel served copies of the R&R on R. Smith and the Estate, making objections due by March 26th. To date, no objections have been filed.

If clear notice has been given of the consequences of failure to object, and there are no objections, the Court may adopt the R&R without de novo review. See Thomas v. Arn, 474 U.S. 140, 149-50 (1985); Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002) ("Where parties receive clear notice of the consequences, failure timely to object to a magistrate's report and recommendation operates as a waiver of further judicial review of the magistrate's decision."). The Court will excuse the failure to object, however, and conduct de novo review if it appears that the magistrate judge may have committed plain error. See Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 174 (2d Cir. 2000).

The R&R contains no error, let alone plain error. Accordingly, the Court adopts it without de novo review. The Clerk shall enter judgment in favor of Rockmore and against R. Smith and the Estate, jointly and severally, in the total amount of $49,766.69 ($45,938.10 plus $3,828.59 in prejudgment interest through May 15, 2013).

SO ORDERED.

FREDERIC BLOCK Senior United States District Judge

20130515

© 1992-2013 VersusLaw Inc.



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