United States District Court, N.D. New York
DECISION AND ORDER
Lawrence E. Kahn, U.S. District Judge
matter comes before the Court following an Order and
Report-Recommendation filed on November 8, 2016, by the
Honorable Andrew T. Baxter, U.S. Magistrate Judge, pursuant
to 28 U.S.C. § 636(b) and Local Rule 72.3. Dkt. No. 5
(“Report-Recommendation”). Pro se plaintiff
Andria Berger filed Objections. Dkt. No. 6
fourteen days after a party has been served with a copy of a
magistrate judge's report-recommendation, the party
“may serve and file specific, written objections to the
proposed findings and recommendations.” Fed.R.Civ.P.
72(b); L.R. 72.1(c). If no objections are made, or if an
objection is general, conclusory, perfunctory, or a mere
reiteration of an argument made to the magistrate judge, a
district court need review that aspect of a
report-recommendation only for clear error. Barnes v. Prack,
No. 11-CV-0857, 2013 WL 1121353, at *1 (N.D.N.Y. Mar. 18,
2013); Farid v. Bouey, 554 F.Supp.2d 301, 306-07, 306 n.2
(N.D.N.Y. 2008); see also Machicote v. Ercole, No.
06-CV-13320, 2011 WL 3809920, at *2 (S.D.N.Y. Aug. 25, 2011)
(“[E]ven a pro se party's objections to a
Report and Recommendation must be specific and clearly aimed
at particular findings in the magistrate's proposal, such
that no party be allowed a second bite at the apple by simply
relitigating a prior argument.”). “A [district]
judge . . . 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). Otherwise, a court
“shall make a de novo determination of those portions
of the report or specified proposed findings or
recommendations to which objection is made.”
has waived judicial review of Judge Baxter's
Report-Recommendation because she was late in filing her
Objections. The Report-Recommendation, which was filed on
November 8, 2016, states that the parties have fourteen days
to file objections. Rep.-Rec. at 19. It further notes that
failure to timely file objections will preclude appellate
review. Id. Berger filed her Objections on November
28, 2016, three days after the November 25 deadline. Docket.
In this circuit, “failure to object timely to a
magistrate's report operates as a waiver of any further
judicial review of the magistrate's decision.”
Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993)
(quoting Small v. Sec'y of Health & Human
Servs., 892 F.2d 15, 16 (2d Cir. 1989)). A pro se
litigant such as Berger loses the right to appellate review
only if “the magistrate's report . . . warn[s] the
pro se litigant of the consequences of the failure to
object.” Frank v. Johnson, 968 F.2d 298, 300
(2d Cir. 1992). The warning contained in Judge Baxter's
Report-Recommendation complies with Small's
requirement that such a warning “specifically cite 28
U.S.C. § 636(b)(1) and rules 72, 6(a) and 6(e) of the
Federal Rules of Civil Procedure.” 892 F.2d at 16.
Thus, Berger was on notice of the deadline and the
consequences of failing to comply with it. While a court
“may excuse the default in the interests of justice,
” Spence v. Superintendent, Great Meadow Corr.
Facility, 219 F.3d 162, 174 (2d Cir. 2000) (quoting
Thomas v. Arn, 474 U.S. 140, 155 (1985)), the Court
sees no reason to do so here. None of the objections Berger
raises has “substantial merit, ” and there is no
indication that Judge Baxter “committed plain error in
ruling against the defaulting party.” Id.
the Court ignored Berger's default, her objections would
not survive de novo review. She argues that her claim for
tortious interference with performance of a contract should
not be dismissed. Objs. at 1. But she never explains how any
of the defendants caused her or her employer to breach her
employment contract. Instead, she simply asserts that
“Defendant Lafountain interfered with [her] obligations
under the law. [She] followed the law and no longer has an
employment position because of it.” Id. Berger
cannot state a claim for tortious interference without
alleging a breach of contract, see Lama Holding Co. v.
Smith Barney, 668 N.E.2d 1370, 1375 (N.Y. 1996) (noting
that “[t]ortious interference with contract requires .
. . actual breach of [a] contract”), so her failure to
do so makes this objection meritless.
also argues that she has stated a claim under New York
General Business Law section 349(a), which forbids
“[d]eceptive acts or practices in the conduct of any
business, trade, or commerce or in the furnishing of any
service in this state.” Objs. at 1. Berger's
problem is that she cannot make out a prima facie case under
section 349 unless she shows that “the defendant's
conduct is ‘consumer-oriented.'” Wilson
v. Nw. Mut. Ins. Co., 625 F.3d 54, 64-65 (2d Cir. 2010)
(quoting Oswego Laborers' Local 214 Pension Fund v.
Marine Midland Bank, N.A., 647 N.E.2d 741, 744 (N.Y.
1995)). “For conduct to be ‘consumer oriented,
' it must involve ‘some harm to the public at
large.'” Toussie v. Allstate Ins. Co., No.
15-CV-5235, 2016 WL 6537670, at *4 (E.D.N.Y. Nov. 3, 2016)
(quoting Dupler v. Costco Wholesale Corp., 249
F.R.D. 29, 43 n.3 (E.D.N.Y. 2008)). Here, Berger has alleged
at most injury to herself; she has not pointed to any harm to
the public at large. Judge Baxter was right to recommend
dismissal of this claim.
Berger objects to Judge Baxter's finding that she cannot
bring a claim under section 16.35(c) of the New York Mental
Hygiene Law. Objs. at 9. As Judge Baxter correctly pointed
out, however, “there is no indication that there is any
private right of action for any ‘violation' of this
statute. In fact, the beginning of subsection c states that
the efforts of the Commissioner ‘may' include the
following ‘projects.'” Rep.-Rec. at 6 n.4.
Thus, this objection is not well taken.
Court has reviewed the remainder of the Report-Recommendation
for clear error and has found none.
it is hereby:
that the Report-Recommendation (Dkt. No. 5) is
APPROVED and ADOPTED in its ...