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Tadco Construction Corp. v. Dormitory Authority of The State of New York

United States District Court, E.D. New York

September 18, 2014



KIYO A. MATSUMOTO, District Judge.

On January 7, 2008, plaintiffs TADCO Construction Corporation ("TADCO") and Thomas DeMartino ("DeMartino, " and collectively with TADCO, "plaintiffs") commenced this action against the Dormitory Authority of the State of New York ("DASNY"), and individual defendants Tyrone Middleton ("Middleton"), Pat Cinelli ("Cinelli"), James Gray ("Gray") and Jack Kemp ("Kemp"). ( See generally ECF No. 1, Complaint filed 1/7/08 ("Compl.").) Plaintiffs allege that defendants violated their civil rights pursuant to 42 U.S.C. § 1983 and New York state law, and additionally, TADCO asserted a breach of contract claim against DASNY. ( See generally Compl.)

On March 19, 2010, the Hon. David G. Trager dismissed several of plaintiffs' claims. (ECF No. 39, Order dated 3/19/10); see also TADCO Contr. Corp. v. Dormitory Auth. of the State of N.Y. [hereinafter TADCO I ], 700 F.Supp.2d 253 (E.D.N.Y. 2010). The only claims remaining after Judge Trager's Order were DeMartino's three federal law claims against the individual defendants, alleging false arrest, malicious prosecution, and abuse of process under § 1983 based on DeMartino's arrest in November 2006, and various state law claims raised by TADCO. TADCO I, 700 F.Supp.2d at 277.

The parties conducted limited discovery on DeMartino's remaining federal claims. ( See Docket Nos. 98-105.) On November 22, 2013, the individual defendants filed their motion for summary judgment as to DeMartino's federal claims. (ECF No. 127, Individual Defendants' Motion for Summary Judgment filed 11/22/13 ("Ind'l Defs.' Mot. for Summ. J."); ECF No. 128-1, Memorandum in Support of Summary Judgment filed 11/22/13 ("Defs.' Br."); ECF No. 128-2, Rule 56.1 Statement in Support of Motion for Summary Judgment filed 11/22/13 ("Defs.' 56.1 Stmt.").) In their motion for summary judgment, the individual defendants also requested that the court award movants the costs, including attorney's fees, of bringing the motion. ( See Defs.' Br. at 38.) DeMartino opposed the motion for summary judgment. ( See ECF No. 124, DeMartino's Rule 56.1 Statement, Opposition, and Supporting Documents filed 10/25/13 ("DeMartino Opp.").)

On December 11, 2013, this court referred the individual defendants' motion for summary judgment to the Hon. Joan M. Azrack for a Report and Recommendation ("R&R"). ( See Order Referring Motion dated 12/11/13.) On September 2, 2014, Judge Azrack issued an R&R recommending that the motion for summary judgment be granted in its entirety, and that the court decline to exercise pendent jurisdiction over TADCO's remaining state law claims. (R&R at 16.) In the R&R, Judge Azrack noted that any objections to the R&R must be filed within fourteen days of the issuance of the R&R, and that failure to file objections within the specified time waives the right to appeal the district court's order. ( Id. (citing 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 72).)

On September 15, DeMartino and TADCO timely filed objections to the R&R. DeMartino objected to the R&R in its entirety. (ECF No. 136, DeMartino Objection filed 9/15/14 ("DeMartino Obj.").) TADCO objected to the R&R's recommendation that this court decline exercising jurisdiction over its remaining state law claims. (ECF No. 137, TADCO Objection filed 9/16/14 ("TADCO Obj.").) DeMartino also joined in TADCO's objection regarding the state law claims. (ECF No. 138, DeMartino Supplement filed 9/16/14.) On September 17, 2014, defendants filed a motion for extension of time to file a response to plaintiffs' objections. (ECF No. 139, Motion for Extension of Time filed 9/17/14.) Because the court finds that plaintiffs' objections to the R&R are meritless, the court respectfully denies defendants' request for extension of time as moot.


The court presumes familiarity with the facts of this case, which have been set forth comprehensively in Judge Azrack's Report and Recommendation, and which are adopted herein.[1] (R&R at 4-7); see also TADCO I, 700 F.Supp.2d at 257-259.[2]


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)(C). The district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). Where "the objecting party makes only conclusory or general objections, or simply reiterates the original arguments, the Court will review the report and recommendation strictly for clear error." Zaretsky v. Maxi-Aids, Inc., No. 10-CV-3771, 2012 WL 2345181, at *1 (E.D.N.Y. June 18, 2012) (internal quotation marks omitted); Ortiz v. Barkley, 558 F.Supp.2d 444, 451 (S.D.N.Y. 2008) ("Reviewing courts should review a report and recommendation for clear error where objections 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 petition." (internal quotation marks omitted)); Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002) ("Merely referring the court to previously filed papers or arguments does not constitute an adequate objection"); see also Soley v. Wasserman, 823 F.Supp.2d 221, 228 (S.D.N.Y. 2011). The district court is "permitted to adopt those sections of a magistrate judge's report to which no specific objection is made, so long as those sections are not facially erroneous." Batista v. Walker, No. 94 Civ. 2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (citation and internal quotation marks and brackets omitted).

Furthermore, even on de novo review of specific objections, the court "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.'" Brown v. Smith, No. 09-CV-4522, 2012 WL 511581, at *1 (E.D.N.Y. Feb. 15, 2012) (quoting Kennedy v. Adamo, No. 02-CV-1776, 2006 WL 3704784, at *1 (E.D.N.Y. Sept. 1, 2006)).


I. DeMartino's Objections

Plaintiff DeMartino makes four specific objections to the R&R, none of which is sufficient to ...

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