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Galvez v. Aspen Corp.

United States District Court, E.D. New York

August 23, 2013

JOSE GALVEZ, ELIGIO HERNANDEZ, DOUGLAS LUND, DONALD A. MORRIS, and WILLIAM SCHAFER, Plaintiffs,
v.
ASPEN CORPORATION and/or ASPEN IRRIGATION INC. and/or MANAGEMENT CONSULTING LABORERS and any related corporate entities, DONALD ADKINS, RONALD ADKINS, and THE CINCINNATI INSURANCE COMPANY, Defendants

For Jose Galvez, Eligio Hernandez, Douglas Lund, Donald A. Morris, William Schafer, Plaintiffs: Lloyd Robert Ambinder, Virginia & Ambinder LLP, New York, NY.

For All Plaintiffs: Lloyd Robert Ambinder, Suzanne B. Leeds, Virginia & Ambinder LLP, New York, NY.

For Aspen Corporation, Aspen Irrigation Inc., Management Consulting Laborers, and any related corporate entities, Donald Adkins, Ronald Adkins, Cincinnati Insurance Company, Defendants: Jeltje DeJong, Joshua S Shteierman, Kelly E Wright, Devitt Spellman Barrett, LLP, Smithtown, NY.

OPINION

Page 616

MEMORANDUM AND ORDER

HON. WILLIAM F. KUNTZ, II, United States District Judge.

On July 18, 2013, United States Magistrate Judge Kathleen Tomlinson issued a report and recommendation recommending that this Court deny a motion by Plaintiffs' counsel to enforce a charging lien upon

Page 617

Defendants pursuant to New York Judiciary Law § 475. Dkt. No. 42. For the reasons set forth below, Magistrate Judge Tomlinson's report and recommendation is ADOPTED in its entirety. Accordingly, the Court DENIES the motion by Plaintiffs' counsel to enforce a charging lien upon Defendants pursuant to New York Judiciary Law § 475.

The facts in this action are meticulously detailed in Magistrate Judge Tomlinson's report and recommendation, and will not be restated here. See id . Neither party has objected to the report and recommendation.

A district court reviewing a 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)(C); see also McGrigs v. Killian, No. 08 Civ. 6238, 2009 WL 3762201, at *2 (S.D.N.Y. Nov. 10, 2009) (Berman, J.). Under 28 U.S.C. § 636(b)(1) and Rule 72(b)(2) of the Federal Rules of Civil Procedure, parties may object to a magistrate judge's report and recommendation. The objections must be " specific" and " written," and they must be made " [w]ithin 14 days after being served with a copy of the recommended disposition." Fed.R.Civ.P. 72(b)(2); see also 28 U.S.C. § 636(b)(1).

Where, as here, a party does not object to a report and recommendation, " a district court need only satisfy itself that there is no clear error on the face of the record." Reyes v. Mantello, No. 00 Civ. 8936, 2003 WL 76997, at *1 (S.D.N.Y. Jan. 9, 2003) (Cote, J.); see also Eisenberg v. New England Motor Freight, Inc., 564 F.Supp.2d 224, 226 (S.D.N.Y. 2008) (Marrero, J.) (" A district court evaluating a Magistrate Judge's report and recommendation may adopt those portions of the . . . report to which no 'specific written objection' is made, as long as the factual and legal bases supporting the findings and conclusions set forth in those sections are not clearly erroneous or contrary to law." (quoting Fed.R.Civ.P. 72(b)(2)). In addition, a party's " failure to object timely to a magistrate's report operates as a waiver of any further judicial review of the magistrate's decision." F.D.I.C. v. Hillcrest Assocs., 66 F.3d 566, 569 (2d Cir. 1995). Moreover, in this case, the report and recommendation explicitly stated that " [p]ursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72 of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days fro service of this Report and Recommendation to file written objections," and that " [f]ailure to file objections will result in a waiver of those objections for purposes of appeal. Dkt. No. 42 at 21-21.

No objections to Magistrate Tomlinson's report and recommendation have been filed. Accordingly, this Court has reviewed the report and recommendation for clear error only.

Magistrate Judge Tomlinson's report thoroughly reviewed existing case law on the right of an attorney to enforce a charging lien pursuant to New York Judiciary Law ยง ...


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