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Onibokun v. Stringer

United States District Court, E.D. New York

December 26, 2017

ENIOLA ONIBOKUN, ADEDOTUN ONIBOKUN Plaintiffs,
v.
SCOTT STRINGER, as COMMISSIONER/EXECUTIVE OFFICER of the NYC COMPTROLLER and THE OFFICE OF THE NYC COMPTROLLER, RICK D. CHANDLER, P.E. as COMMISSIONER/EXECUTIVE OFFICER of the NYC DEPARTMENT OF BUILDINGS and the Office of the NYC DEPT. OF BUILDINGS and THE CITY OF NEW YORK Defendants.

          DECISION AND ORDER

          Ann M. Donnelly United States District Judge.

         The pro se plaintiffs bring this action against Rick D. Chandler, P.E., as the Commissioner of the New York City Department of Buildings ("DOB") and Scott Stringer, the New York City Comptroller, in addition to the City of New York, alleging violation of their federal civil rights under 42 U.S.C. § 1983, as well as state law. The plaintiffs filed their initial complaint on March 18, 2016, (ECF No. 1), and thereafter filed on amended complaint on October 4, 2016. (ECF No. 33). The defendants moved to dismiss the plaintiffs' amended complaint on January 12, 2017. (ECF No. 37.) On June 23, 2017, Magistrate Judge Lois Bloom issued a Report and Recommendation ("R&R"), granting the defendants' motion. (ECF No. 45.) On September 6, 2017, the plaintiffs filed objections to the R&R, and sought leave from Judge Bloom to file a second amended complaint. (ECF No. 48; ECF No. 49.) On October 6, 2017, the defendants responded to the plaintiffs' objections, and opposed the plaintiffs' second amended complaint, (ECF No. 52.)

         Based on my review of the record and the parties' submissions, I agree with Judge Bloom's thorough and well-reasoned R&R. For the reasons that follow, I dismiss the plaintiffs' § 1983 claim, and deny the plaintiffs' motion for a second amended complaint.

         BACKGROUND

         The facts of this matter are discussed in greater detail in Judge Bloom's R&R. (ECF No. 45.) In relevant part, in September of 2011, the plaintiffs, Eniola and Adedotun Onibokun, entered into a contract with Trogir Construction Inc. for $215, 000, to renovate their home in South Ozone Park, New York. (ECF No. 33 at ¶¶ 1, 36.) According to the contract, the renovation was to be completed on or about February of 2012, (ECF No. 33 at ¶ 37.) The DOB did not verify the contractor's documentation, and granted the contractor's application for permits to renovate the plaintiffs' house.

         The contractor did not execute the DOB approved plan, and in November of 2011, a DOB inspector issued the contractor two violations, and, among other things, instituted a "FULL STOP" work order on the plaintiffs' renovations for nine months, (ECF No. 33 at ¶¶ 17, 42, 44), costing the plaintiffs more than $657, 955 in estimated damages. (ECF No. 33 at ¶¶ 14, 15, 39, 75.) The plaintiffs later learned that the contractor was unlicensed and uninsured. In 2012 and 2013, the plaintiffs had to pay fines of $8, 508.90; the plaintiffs were issued new building permits in April of 2014. (ECF No. 33 at ¶¶ 114, 170-71.)

         The contractor never finished the plaintiffs' contract, paid the DOB fines, or appeared for violation hearings with the DOB or Environmental Control Board. (ECF No. 33 at ¶¶ 18, 41.) The contractor has since disappeared.

         DISCUSSION

         A district court reviewing a magistrate judge's report and recommendation "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Fed.R.Civ.P. 72(b).

         When a magistrate judge makes a recommendation that is dispositive of a party's claim, the district judge must review de novo any part of the magistrate judge's decision to which a party properly objects. Fed. R. Civ. P, 72(b)(3). The court may adopt any sections of the magistrate's report to which a party did not object, as long as the magistrate's decision was not "facially erroneous." Markey v. Lapolla Indus., Inc., No. 12-cv-4622-JS-AKT, 2016 WL 324968, at *3 (E.D.N.Y. Jan. 26, 2016) (citation omitted).

         If a party does not object to a conclusion in the magistrate judge's report, the argument is waived, and will not be reviewed. See, e.g., Johnson v. Woods, 426 Fed.Appx. 10, 11 (2d Cir. 2011) (citing Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003)). Because the plaintiffs are pro se litigants, I evaluate their submissions by a more lenient standard; however, "the leniency accorded pro se litigants is not without limits, and all normal rules of pleading are not absolutely suspended." Gil v. Vogilcmo, 131 F.Supp.2d 486, 491 (S.D.N.Y. 2001) (quoting Stinson v. Sheriff's Dep't, 499 F.Supp. 259, 262 (S.D.N.Y. 1980) (internal quotation marks omitted).

         A. Plaintiffs' Opposition to the R&R

         The plaintiffs object to Judge Bloom's determination that the three-year statute of limitations has run on their § 1983 claim, and make an argument that was not included in their amended complaint. (See ECF No. 49 at ¶¶ 1-67.) The upshot of the plaintiffs' new argument is essentially this: the plaintiffs' property was destroyed in 2011 as a result of a DOB inspector's emergency unit report, and that the plaintiffs did not get photographic evidence of the DOB's assertedly "fraudulent findings."[1] (See, e.g., ECF No. 49 at ¶¶ 3-4, 7-8, 21.) The plaintiffs argue that these documents - withheld by the defendants until 2014 - constitute ''material evidence, " without which the plaintiff were ''unable to satisfy all [the] elements" of their § 1983 claim. (ECF No. 49 at ¶ 23, 53.)

         The plaintiffs also contend that the proper statute of limitations period for a § 1983 claim is the "medical malpractice discovery accrual rule, " which runs "when the plaintiff knew or had reason to know of the injury." (ECF No. 49 at 1.) The plaintiffs argue that the statute did not begin to run with the demolition of their house in 2011, but rather in 2014, when they discovered that their contractor was ...


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