Opinion
Master File 00 Civ. 0648 (LAK).
March 18, 2005
ORDER
Magistrate Judge Ronald L. Ellis issued a report and recommendation, dated November 16, 2004, that recommended, inter alia, that Lead Counsel's motion for authority to finalize distribution of settlement proceeds, and to allocate funds to late filed claims on a pro rata basis, be granted and that a number of late filed claims, including that of Joachim Wolf, be rejected. The Court adopted the report and recommendation on February 4, 2005.
The Court is in receipt of a letter, dated February 10, 2005, from Mr. Wolf, which it construes to be an untimely objection to the report and recommendation. Mr. Wolf in substance asserts that he cannot understand how Magistrate Judge concluded that he had failed to carry his burden.
The evidence before the Magistrate Judge demonstrated that a claim packet was duly mailed to Mr. Wolf at his correct address and not returned. A supplemental mailing was made to him, in care of his brother, in at the brother's correct California address. These facts gave rise to a rebutable presumption that the mailings were received by Mr. Wolf and his brother. A denial of receipt, standing alone, is insufficient to rebut the presumption. E.g., Nassau Ins. Co. v. Murray, 46 N.Y.2d 828, 414 N.Y.S.2d 117 (1978). The insufficiency of the denial is especially patent here, as there is no first-hand denial by Mr. Wolf's brother. The Magistrate Judge therefore committed no error in concluding that Mr. Wolf received the claim packet and the supplemental mailing. In view of the lack of an claim by Mr. Wolf of excusable neglect with respect to the timeliness of his filing, there was no error in the rejection of his claim.
Accordingly, even if the Court were disposed to overlook the untimeliness of the objection, the objection would be overruled on the merits.
SO ORDERED.