United States District Court, S.D. New York
MEMORANDUM DECISION AND ORDER
B. DANIELS, UNITED STATES DISTRICT JUDGE
Walley Quinones, pro se, brings this action under 42
U.S.C. § 1983 against Defendants City of New York (the
"City") and an unidentified correction officer,
alleging he was deprived of adequate medical care while he
was in the custody of the New York City Department of
Correction. (See Compl., ECF No. 1.) The City moves
for summary judgment, arguing that Plaintiffs claims are
barred by a general release he executed in connection with
the settlement of another action against the
City. (Def.'s Mot. for Summ.
ECF No. 42; Mem. in Supp. of Def.'s Mot. for Summ. J.,
ECF No. 43.) Plaintiff has not responded to the City's
matter was referred to Magistrate Judge Debra Freeman for
general pretrial supervision, as well as to report and
recommend on any dispositive motions. (ECF No. 3.) Before
this Court is Magistrate Judge Freeman's July 13, 2018
Report and Recommendation ("Report", ECF No. 46),
recommending that this Court deny without prejudice the
City's motion for summary judgment due to its failure to
support the motion with admissible evidence. (Id. at
7.) In her Report, Magistrate Judge Freeman advised the
parties that failure to file timely objections to the Report
would constitute a waiver of those objections on appeal.
(Id. at 7-8.) No. objections have been filed, nor
has the City taken any action to cure the technical
reviewed the Report for clear error and finding none, this
Court ADOPTS the Report in full.
Report and Recommendations
may accept, reject, or modify, in whole or in part, the
findings set forth in a report and recommendation. 28 U.S.C.
§ 636(b)(1)(C). Where no party files objections to a
report and recommendation, as here, the court may adopt it if
"there is no clear error on the face of the
record." Adee Motor Cars, LLC v. Amato, 388
F.Supp.2d 250, 253 (S.D.N.Y. 2005) (quoting Nelson v.
Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y. 1985)). Clear
error is present only when "upon review of the entire
record, [the court is] left with the definite and firm
conviction that a mistake has been committed."
United States v. Snow, 462 F.3d 55, 72 (2d Cir.
2006) (citation omitted).
judgment is appropriate when there is no genuine issue of
material fact and the moving party is entitled to judgment as
a matter of law. See Fed. R. Civ. P. 56(a). "An
issue of fact is 'genuine' if 'the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party.'" Gayle v. Gonyea, 313
F.3d 677, 682 (2d Cir. 2002) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). A fact is
material when "it 'might affect the outcome of the
suit under the governing law.'" Gayle, 313
F.3d at 682 (quoting Anderson, 477 U.S. at 248).
party seeking summary judgment has the burden of
demonstrating that no genuine issue of material fact exists.
See Marvel Characters, Inc. v. Simon, 310 F.3d 280,
286 (2d Cir. 2002). The moving party may satisfy that burden
only by submitting evidence in admissible form to support the
material facts claimed to be undisputed. Ehrens v.
Lutheran Church, 385 F.3d 232, 235 (2d Cir. 2004);
Gallov. Prudential Residential Servs., Ltd P
'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). Aparty
asserting that a fact is not genuinely disputed must support
that assertion by "citing to particular parts of
materials in the record, including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations (including those made for purposes
of the motion only), admissions, interrogatory answers, or
other materials." Fed.R.Civ.P. 56(c)(1); see
also S.D.N.Y. Local Civil Rule 56.1 (requiring party
moving for summary judgment to submit a statement of material
facts as to which there is no genuine issue to be tried, with
"citation[s] to evidence which would be admissible, set
forth as required by Fed.R.Civ.P. 56(c)"). In addition,
"[a]n affidavit or declaration used to support or oppose
a motion must be made on personal knowledge, set out facts
that would be admissible in evidence, and show that the
affiant or declarant is competent to testify on the matters
stated." Fed.R.Civ.P. 56(c)(4).
the non-moving party must generally "come forward with
admissible evidence sufficient to raise a genuine issue of
fact for trial in order to avoid summary judgment,"
Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d
Cir. 2008), it is well settled that summary judgment may not
be granted on default. See Vt. Teddy Bear Co. v. 1-800
Beargram Co., 373 F.3d 241, 246 (2d Cir. 2004). Thus,
where no opposition to a summary judgment motion is filed, as
here, the court must be satisfied that "each [assertion]
of material fact is supported by record evidence sufficient
to satisfy the movant's burden of production."
Jackson v. Fed. Express, 766 F.3d 189, 194 (2d Cir.
SUMMARY JUDGMENT IS DENIED
City argued that Plaintiffs claims in this action are barred
by a general release he executed in connection with a
settlement of an unrelated case against the City. (Def.'s
Mem. at 1.) The City's motion for summary judgment,
however, is unsupported by admissible evidence, as required
by Federal Rule of Civil Procedure 56(c), and unaccompanied
by a statement of undisputed facts, as required by Local Rule
56.1. The only affidavit submitted in support of the motion
is an attorney declaration, which attaches no exhibits and
does not even reference the circumstances under which the
putative general release was executed. Instead, the
settlement containing the putative general release appears to
have been annexed to the City's memorandum of law.
(See Def.'s Mem., Ex. B, ECF No. 43-2.)
Report correctly found that the City's motion for summary
judgment should be denied as insufficiently supported.
(Report at 5-6.) As the Report notes, the City has failed to
"properly submit any evidence in support of
its motion." (Id. at 6.) The only affidavit
submitted does not provide any information to authenticate or
demonstrate the putative release's admissibility, nor
does it explain the release's origin or the basis for the
declarant's belief that Plaintiff is the person who
signed it. Moreover, the affidavit contains no certification,
based on personal knowledge, that the document is what the
City claims it to ...