United States District Court, E.D. New York
DECISION AND ORDER
Donnelly United States District Judge.
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
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.
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.
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.)
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.
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).
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).
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
Plaintiffs' Opposition to the R&R
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." (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.)
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 ...