United States District Court, E.D. New York
MEMORANDUM AND ORDER ADOPTING REPORT AND
L. IRIZARRY, Chief United States District Judge.
Dani's Windows & Glass, Inc. (“DWG”),
initiated this proceeding on January 15, 2014 by filing a
Complaint alleging that Defendant, The Fidelity and Deposit
Company of Maryland (“Fidelity”), breached two
construction contracts by failing to make required payments
on their associated bonds. Specifically, DWG claimed that
Fidelity failed to pay it for work performed on the Glen Oaks
Library (“Glen Oaks”) in Queens, New York, and
for the work performed on the Riverside Health Center
(“Riverside”) in Manhattan, New York.
See Complaint (“Compl.”), Dkt. Entry No.
1. On August 8, 2014, Fidelity filed an Amended Answer
(“Am. Answer”) and counterclaimed that DWG had
abdicated its duties under the Riverside contract and
abandoned the project before completion. See Am.
Answer, Dkt. Entry No. 22.
parties moved for partial summary judgment. DWG served its
motion on February 4, 2015. See Br. in Supp. of
Pl.'s Mot. for Partial Summ. J. (“DWG Mot.”),
Dkt. Entry No. 41-17. Fidelity served its opposition papers
on February 18, 2015. See Br. in Opp. to Pl.'s
Mot. for Partial Summ. J. (“Fidelity Opp.”), Dkt.
Entry No. 42. DWG served its reply on March 20, 2015.
See Reply Br. in Further Supp. of Pl.'s Mot. for
Partial Summ. J. (“DWG Reply”), Dkt. Entry No.
43. DWG's motion sought summary judgment on the issue of
liability and damages concerning Fidelity's alleged
breach of the Glen Oaks contract, only. See DWG Mot.
served its cross-motion on February 18, 2015. See
Br. in Supp. of Def.'s Mot. for Partial Summ. J.
(“Fidelity Mot.”), Dkt. Entry No. 44-30. DWG
served its opposition papers on March 20, 2015. See
Br. in Opp. to Def.'s Mot. for Partial Summ. J.
(“DWG Opp.”), Dkt. Entry No. 45. Fidelity served
its reply, and filed all motion papers for both motions, on
April 17, 2015. See Reply Br. in Further Supp. of
Def.'s Mot. for Partial Summ. J. (“Fidelity
Reply”), Dkt. Entry No. 46. Fidelity's motion
sought summary judgment only on its counterclaims for
DWG's alleged breach of the Riverside contract.
See Fidelity Mot.
16, 2016, this Court referred the two motions to United
States Magistrate Judge James Orenstein for a Report and
Recommendation (“R & R”). On September 7,
2016, the magistrate judge issued an R & R recommending
that the Court grant Dani's motion, deny Fidelity's
motion, and proceed to trial on all remaining issues. See
generally R & R, Dkt. No. 47. In granting DWG's
motion, the magistrate judge determined that: (1) the work
performed by DWG was properly authorized; (2) the only item
challenging the validity of the authorizations was a
conclusory affidavit generated after the close of discovery;
and (3) DWG's alleged debt to Fidelity for the Riverside
project does not prevent granting summary judgment to
Plaintiff. Id. at 7-10. In denying Fidelity's
motion, the magistrate judge found that the determination as
to whether DWG had abandoned the Riverside project
“boil[ed] down to a factual question of whether [DWG]
substantially completed its contractual performance
before” the October 30, 2013 meeting. Id. at
September 21, 2016, Fidelity timely filed objections to the R
& R, raising ten arguments. See Objs. to R &
R of the Hon. James Orenstein, U.S. Mag. Judge, E.D.N.Y.
Dated Sept. 7, 2016 (“Objs.”), Dkt. Entry No. 48.
DWG opposed those objections on October 5, 2016. See
Pl. Dani's Windows & Glass, Inc.'s Mem. of Law in
Resp. to Def.'s Rule 72 Objs. (“Objs. Opp.”),
Dkt. Entry No. 48.
reasons below, the objections are overruled and the R & R
is adopted in its entirety.
party objects to an R & R, a district judge must make a
de novo determination as to those portions of the R
& R to which a party objects. See Fed. R. Civ.
P. 72(b)(3); United States v. Male Juvenile, 121
F.3d 34, 38 (2d Cir. 1997). However, if a party “simply
relitigates his original arguments, the Court reviews the
Report and Recommendation only for clear error.”
Antrobus v. New York City Dep't of Sanitation,
No. 11-CV-5434 (CBA) (LB), 2016 WL 5390120, at * 1 (E.D.N.Y.
Sept. 26, 2016) (internal citations and quotation marks
omitted); see also Rolle v. Educ. Bus Transp., Inc.,
No. 13-CV-1729 (SJF) (AKT), 2014 WL 4662267, at *1 (E.D.N.Y.
Sept. 17, 2014) (explaining that to allow “a rehashing
of the same arguments set forth in the original papers . . .
would reduce the magistrate's work to something akin to a
meaningless dress rehearsal.”) (internal citations and
quotation marks omitted). Similarly, the Court will not
“ordinarily . . . consider arguments, case law and/or
evidentiary material which could have been, but [were] not,
presented to the magistrate judge in the first
instance.” Santiago v. City of New York, No.
15-CV-517 (NGG) (RER), 2016 WL 5395837, at *1 (E.D.N.Y. Sept.
26, 2016) (internal citation and quotation marks omitted).
After its review, the district court may then “accept,
reject, or modify the recommended disposition; receive
further evidence; or return the matter to the magistrate
judge with instructions.” Fed.R.Civ.P. 72(b)(3);
see also 28 U.S.C. § 636(b)(1).
objections are that: (1) the magistrate judge made an
improper factual determination (Objs. at 8); (2) Fidelity
raised triable issues of fact concerning rejected change
orders (Id. at 4-5); (3) the evidence does not
support DWG's claim that Summit authorized all additional
work for which it seeks payment (Id. at 7-8); (4)
the magistrate judge incorrectly found that a witness'
deposition testimony contradicted his post-discovery
affidavit (Id. at 8); (5) the magistrate judge made
an improper credibility determination (Id. at 5-7);
(6) Fidelity should be excused from a typographical error in
its opposition papers that cited to the wrong exhibit and the
Court should re-evaluate its argument based on the correct
exhibit (Id. at 2-3); (7) the magistrate judge
ignored N.Y. State Fin. Law § 137 (Id. at 9);
(8) a final judgment should not be entered on the question of
the Glen Oaks project under Fed.R.Civ.P. 54(b) (Id.
at 12); (9) if the Court adopts the R & R's findings
vis-à-vis the Glen Oaks project, enforcement should be
stayed under Fed.R.Civ.P. 62(h) (Id. at 12-13); and
(10) the record establishes that DWG's work on the
Riverside project was not substantially complete
(Id. at 10-11).
The Giattino Affidavit
first five objections concern the post-discovery Affidavit of
Frank Giattino, the Executive Vice President of Summit
Construction Services Group, Inc. See Objs. at 2-8;
see also Aff. of Frank Giattino in Opp. to Pl.'s
Mot. (“Giattino Aff.”), Dkt. Entry No. 42-28. For
most of these objections, the discussion is confined to three
specific paragraphs. For ease of reference, the paragraphs at
issue are reproduced below:
CLAIM INCLUDES CHANGE ORDERS WHICH HAVE NOT BEEN APPROVED OR
PAID FOR BY OWNER
5. Plaintiff has included several change orders in its claim
against the Glen Oaks project that have either not been
approved and paid for by the project owner, the Department of
Design and Construction (“DDC”), or have been
6. These change orders include one for $14, 115.36 which has
not been paid for by the DDC and several others totaling
another $12, 295.00 which have been rejected, as they seek
compensation for work that was part of Plaintiff's base
scope of work.
7. While [Fidelity] disputes that anything is owed with
respect to the Glen Oaks project, at the very least the fact
that there are several disputed change orders necessitates
that the court deny any motion made by the ...