Opinion
19-CV-2321 (MKV) (KHP)
11-10-2021
DARLENE OLIVER Plaintiff, v. CITY OF NEW YORK, ET AL. Defendants.
TO: THE HONORABLE MARY KAY VYSKOCIL, UNITED STATES DISTRICT JUDGE.
ORDER, REPORT, AND RECOMMENDATION ON MOTION TO AMEND
KATHARINE H. PARKER, United States Magistrate Judge.
Plaintiff Darlene Oliver commenced this action on March 14, 2019 against the City of New York and several New York City Police Department (“NYPD”) officers alleging civil rights violations under 42 U.S.C. §1983 and related state law claims. Specifically, Plaintiff's allegations arise from her December 16, 2017 arrest when the police were called to her apartment building after she had a physical altercation with a neighbor.
Presently before this Court is Plaintiff's motion for leave to file a Second Amended Complaint (“SAC”), pursuant to Federal Rules of Civil Procedure 15 and 16, to add two NYPD officers (Police Officer Abul Miah and Sergeant Bryan Sorrells), a claim for denial of access to the courts, a Monell claim, and a state law claim for false imprisonment. (ECF Nos. 69-71.) For the reasons set forth below, I recommend that Plaintiff's motion for leave to amend be denied to the extent it seeks to add Defendant Sergeant Bryan Sorrels, a claim for denial of access to the courts, and a Monell claim. This Court grants Plaintiff's motion to amend to add Defendant Police Officer Abul Miah and a state law claim for false imprisonment.
PROCEDURAL HISTORY AND FACTUAL ALLEGATIONS
A. PROCEDURAL HISTORY
Plaintiff commenced this action on March 14, 2019. (ECF No 1.) Defendants answered on July 15, 2019. (ECF No. 10.) Plaintiff then filed an amended complaint on August 18, 2019. (ECF No. 12.) Defendants answered the amended complaint on January 3, 2020. (ECF No. 32.) On January 6, 2020, the Honorable Analisa Torres ordered that depositions and fact discovery be concluded by May 4, 2020, ordering that “[a]mended pleadings may not be filed and additional parties may not be joined except with leave of the Court. Any motion to amend or to join additional parties shall be filed within 60 days from the date of this Order.” (ECF No. 33.) The case was then reassigned to the Honorable Mary Kay Vyskocil on February 6, 2020. Due to additional extensions to the schedule, discovery is currently set to close on December 31, 2021. (ECF No. 86.)
On July 23, 2021, Plaintiff filed her motion for leave to amend her complaint, which is now at issue. (ECF Nos. 69-71.) Defendants oppose Plaintiff's motion, except to the adding of Officer Miah as a defendant. (ECF No. 78.)
The Court notes that it has received and considered Plaintiff's supplemental letter filed on November 8, 2021. (ECF No. 87.)
The facts herein are taken from Plaintiff's proposed second amended complaint and assumed true for purposes of this motion.
In the late afternoon on December 16, 2007, Plaintiff had a fight with a neighbor in the lobby of their building, located at 1420 Bronx River Avenue, Bronx, New York. (ECF No. 70; SAC ¶¶ 11-12.) The police were called, and several officers responded. (SAC ¶ 25.) By the time the police arrived, Plaintiff had gone to her apartment. (SAC ¶ 13.) Police Officers knocked on Plaintiff's door and asked her to step outside into the hallway. Plaintiff complied and explained what had transpired with her neighbor. (SAC ¶ 15.) The Police Officers then left Plaintiff for a brief time but asked her to remain in the hallway. When they returned, they requested Plaintiff's identification. (SAC ¶¶ 16-17.) Plaintiff responded that her identification was in a friend's vehicle outside and requested to retrieve it. (SAC ¶ 18.) The officers permitted her to leave to go to the car. As Plaintiff was headed outside, she saw her neighbor (with whom she had had an altercation) standing near a number of police officers. (SAC ¶¶ 21-25.) At that point, Plaintiff asserts that one of the officers standing near her neighbor, Police Officer Miguel Perea, slammed her into a wall and handcuffed her tightly. (SAC ¶26.)
The police then transported Plaintiff to the police precinct. (SAC ¶ 27.) After waiting in the precinct, still handcuffed, for at least 10 minutes, a female Sergeant approached Plaintiff and without permission, moved some strands of Plaintiff's hair which were in front of her face to the side. (SAC ¶¶ 29-32.) Plaintiff objected and told the Sergeant not to touch her. (SAC ¶ 33.) Plaintiff alleges that the Sergeant got upset at Plaintiff's words and threw her into a wall, causing injury to her eye. (SAC ¶ 34.) The Sergeant then pulled Plaintiff's handcuffed arms backwards to inflict greater injury including scrapes to her wrists and swelling to one of her hands. (SAC ¶¶ 36, 42.) The Sergeant also allegedly verbally abused Plaintiff. (SAC ¶¶ 35, 39.) Other officers allegedly also joined in the abuse. (SAC ¶ 37, 41.) Plaintiff yelled that there was video capturing the harm the Sergeant was inflicting on Plaintiff. (SAC ¶ 38.) At some point Plaintiff was taken to the hospital and given pain medication for pain in her arms and an x-ray of her hand. (SAC ¶¶ 44, 46.) She then returned to the precinct, was taken to Central Booking, and then arraigned. (SAC ¶ 47.)
According to Plaintiff, the female Sergeant refused to issue her a Desk Appearance Ticket, instead telling Plaintiff that “she was getting put through the system because she was a ‘stupid black bitch' and because Plaintiff was being an asshole.” (SAC ¶ 43.) Plaintiff spent approximately 48 hours in police custody from arrest through arraignment. (SAC ¶¶ 47-48.)
Plaintiff filed a Notice of Claim with the Comptroller of the City of New York on March 16, 2018, within 90 days of the incident, as required. (ECF No. 77; Marquez Decl. Ex. D.) However, of note, Plaintiff filed her claim on the 90th day at 7:14 p.m.
C. PLAINTIFF'S PROPOSED AMENDMENTS
1. Adding Officer Abul Miah as a defendant
Officer Miah was previously referred to as “John Doe #1” in the complaint filed on August 18, 2019. (ECF No. 12.) Defendants first identified John Doe #1 as Officer Miah on November 23, 2020 in their supplemental disclosures. Plaintiff now wants to substitute Officer Miah for “John Doe #1.” Defendants do not object. Accordingly, this amendment request is GRANTED.
2. Adding Sergeant Bryan Sorrels as a defendant
During discovery, Defendants produced four video files containing footage showing the altercation between the Plaintiff and her neighbor and later points in time when officers had arrived in the building. None of the videos show the moment when Plaintiff was handcuffed and allegedly slammed into the wall by Officer Perea. On June 9, 2020, Defendants produced their first set of interrogatories, in an omnibus manner, meaning, each defendant did not individually answer each interrogatory question but submitted one answer on behalf of all Defendants. (ECF No. 70; Rothman Decl. Ex. 5.) At that time, Defendants stated that “Sergeant Amanda Szot and Police Officer Miguel Perea viewed video footage of the plaintiff at 1420 Bronx River Avenue[.]” Id.
On December 18, 2020, Defendants produced individualized interrogatory responses that Plaintiff argues contradicts the earlier omnibus responses. Specifically, Sergeant Amanda Szot, Plaintiff's arresting officer, states that
she called the N.Y.P.D. VIPER division to review and/or obtain video footage of the Plaintiff's incident that occurred on December 16, 2017 . . . [where she] spoke with Sergeant Bryan Sorrells from the VIPER division who reviewed video footage of 1420 Bronx River Avenue . . . Sgt. Szot clarifies that she never personally reviewed the video on the date of the incident.(ECF No. 70; SAC ¶ 51; Rothman Decl. Ex. 6). Based on this revision, Plaintiff asserts that Sergeants Szot, Sorrells, and Officer Perea conspired to spoliate and purposefully not preserve video footage showing Plaintiff's arrest and the moment when she allegedly was slammed into the wall. (SAC ¶¶ 52-53.) Plaintiff now seeks to add Sergeant Sorrells as a Defendant alleging a Section 1983 conspiracy.
3. Adding a claim for denial of access to the courts
Based on the interrogatory responses described above and a new theory about spoliation of video, Plaintiff also seeks to add a claim for denial of access to the courts on the theory that she will not be able to try her claim of excessive force without the surveillance video.
4. Adding a Monell claim
In a similar vein, Plaintiff seeks to add a Monell claim related to how the City handles street and public housing surveillance video. Currently, surveillance footage is deleted after 30 days (unless it has been pulled and preserved due to the filing of a legal claim or for investigative purposes). Plaintiff argues that surveillance footage in general should be preserved for the three-year federal statute of limitations period applicable to claims brought under Section 1983 or, alternatively, at least for 91 days-after the 90-day Notice of Claim period for claims brought against the City elapses. Plaintiff argues that the current policy routinely leads to the spoliation of video evidence and gives rise to a Monell claim. (SAC ¶ 67.)
5. Adding a state law claim for false imprisonment
Lastly, Plaintiff seeks to add a claim for false imprisonment because she was detained through arraignment rather than simply issued a Desk Appearance Ticket. (SAC ¶¶ 84-87.) Plaintiff believes the police declined to give her a Desk Appearance Ticket because of her race and in retaliation for exercising her first amendment right of free speech when she asked the John Doe Female NYPD Sergeant not to touch her and stated there was video recording in the precinct when she was allegedly manhandled. (SAC ¶¶ 32, 37-38.) Plaintiff points to John Doe Female NYPD Sergeant's comments to her that she was a “stupid black bitch” and “asshole” as evidencing racial animus. (SAC ¶¶ 39, 43.) Although the factual allegations supporting this claim were previously included in the first amended complaint, Plaintiff's counsel explains that he inadvertently failed to separately delineate this distinct cause of action and therefore requests permission to add it now.
DISCUSSION
A. LEGAL STANDARD TO AMEND A PLEADING
Under Rule 15(a) of the Federal Rules of Civil Procedure, “a party may amend its pleading once as a matter of course within . . . 21 days after serving it, or . . . if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed.R.Civ.P. 15(a)(1). “In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). The Second Circuit has stated that “[t]his permissive standard is consistent with our strong preference for resolving disputes on the merits.” Williams v. Citigroup Inc., 659 F.3d 208, 212-13 (2d Cir. 2011) (citation omitted). Under Rule 15, leave to amend should be given “absent evidence of undue delay, bad faith or dilatory motive on the part of the movant, undue prejudice to the opposing party, or futility.” Monahan v. N.Y.C. Dep't of Corrs., 214 F.3d 275, 283 (2d Cir. 2000).
A court may deny a motion to amend a complaint when the proposed amendments are futile. Proposed amendments are futile when they would fail to state a claim under Rule 12(b)(6). IBEW Local Union No. 58 Pension Tr. Fun & Annuity Fund v. Royal Bank of Scotland Grp., PLC, 783 F.3d 383, 389 (2d Cir. 2015) (quoting Panther Partners Inc. v. Ikanos Commc'ms, Inc., 681 F.3d 114, 119 (2d Cir. 2012)). Because determination of futility is subject to the same standards as a motion to dismiss under Rule 12(b)(6), “futility is generally adjudicated without resort to any outside evidence, ” and the court must accept all facts pleaded as true. Wingate v. Gives, No. 05-cv-1872 (LAK) (DF), 2009 WL 424359, at *5 (S.D.N.Y. Feb. 13, 2009) (citing Nettis v. Levitt, 241 F.3d 186, 194, n.4 (2d Cir. 2001)). Under a motion to dismiss, in order for a complaint to survive, the court must determine that the complaint contains “sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While detailed factual allegations are not required, the complaint must contain more than mere “labels and conclusions.” Id. It must contain more than naked assertions devoid of “further factual enhancement.” Id.
Where, as here, there is a scheduling order in place that establishes a deadline for seeking leave to amend, “the lenient standard under Rule 15(a), which provides leave to amend ‘shall be freely given,' must be balanced against the requirement under Rule 16(b) that the Court's scheduling order ‘shall not be modified except upon a showing of good cause.'” Holmes v. Grubman, 568 F.3d 329, 334 (2d Cir. 2009); see also Fed.R.Civ.P. 16(b)(4) (a scheduling order “may be modified only for good cause and with the judge's consent.”). The determination of whether “good cause” exists under Rule 16(b) largely turns largely on the diligence of the moving party. Holmes, 568 F.3d at 335; see also Perfect Pearl Co., Inc. v. Majestic Pearl & Stone, Inc., 889 F.Supp.2d 453, 457 (S.D.N.Y. 2012) (to show good cause, moving party must demonstrate that “despite its having exercised diligence, the applicable deadline could not have been reasonably met”) (citation omitted).
B. APPLICATION TO PLAINTIFF'S PROPOSED AMENDMENTS
In reaching its conclusions and recommendations, the Court does not address arguments that are not necessary to reach.
1. Adding Sergeant Bryan Sorrels as a defendant
Plaintiff proposes to amend her complaint to allege that Sergeant Sorrells conspired with Sergeant Szot and Officer Perea resulting in a constitutional injury in violation of 42 U.S.C. § 1983 (“Section 1983”). Defendants contend that the proposed amendment adding Sergeant Sorrells should be denied because the amendment would be futile and would not survive a motion to dismiss.
“To prove a Section 1983 conspiracy, a plaintiff must show: (1) an agreement between two or more state actors or between a state actor and a private entity; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages.” Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999). A plaintiff “must provide some factual basis supporting a meeting of the minds.” Webb v. Goord, 340 F.3d 105, 110 (2d Cir. 2003). Furthermore, a complaint that contains "only conclusory, vague or general allegations of conspiracy to deprive a person of constitutional rights cannot withstand a motion to dismiss." Leon v. Murphy, 988 F.2d 303, 311 (2d Cir. 1993) (quoting Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir. 1983).
In the proposed SAC, Plaintiff not only fails to allege any facts to suggest that there was an agreement or meeting of the minds between Sergeants Sorrells, Szot, and Officer Perea to violate plaintiff's constitutional rights, but she also does not allege an agreement of any sort. Plaintiff only alleges that Sergeants Sorrells, Szot, and Officer Perea conspired to purposefully not retain or otherwise delete video footage in violation of Section 1983. There are no facts from which a plausible inference could be drawn about an agreement. Any alleged discrepancy in the interrogatory responses about who viewed the video and when is also insufficient to support the existence of an agreement. See Dunlop v. City of New York, No. 06-cv-0433 (RJS), 2008 WL 1970002, at *8 (S.D.N.Y. May 6, 2008) (finding Plaintiff's allegations of a Section 1983 conspiracy did not support the existence of an agreement or meeting of the minds); Ligonde v. Marriot Hotel Servs., No. 20-cv-3680 (AMD) (CLP), 2021 U.S. Dist. LEXIS 149435, at *25 (E.D.N.Y. Aug. 5, 2021) (report and recommendation) (denying leave to amend complaint to add a Section 1983 conspiracy claim against NYPD officers for failing to adequately allege an agreement). Thus, Plaintiff's conspiracy claim fails because it lacks sufficient allegations that would support a plausible inference that Sorrells, Szot, and Perea had an agreement regarding not preserving or destroying video showing Plaintiff being handcuffed and arrested at the apartment building.
Not only does the interrogatory response not support a plausible inference of an agreement to destroy footage of the moment of Plaintiff's arrest, but it is notable that the Police had no notice that such footage would ever be needed within the thirty days after the arrest, as Plaintiff did not indicate her intention to bring suit until ninety days after the incident when she filed her Notice of Claim. At the time of the incident, and shortly thereafter, the police investigation was focused on the claims against Plaintiff stemming from her altercation with her neighbor. The video pulled therefore relates to the altercation, not the subsequent arrest of Plaintiff. The City's duty to retain footage relevant to Plaintiff's case arose when it anticipated being a party to a lawsuit; here, that would have been when Plaintiff filed her Notice of Claim. Hughes v. City of New York, No. 18-cv-09380-MKV, 2021 WL 4295209, at *9 (S.D.N.Y. Sept. 21, 2021) (Vyskocil, J.) (quoting Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423 , 436 (2d Cir. 2001)) (A party's duty to preserve "arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation."). Thus, the Officers were under no obligation to preserve or pull video of the actual handcuffing of Plaintiff in the 30-day period when the video existed. Nor is it plausible from the facts alleged that Sorrells was plotting with the other officers to destroy video about a claim that had not yet been filed.
Accordingly, because there are no facts supporting a plausible inference of an agreement between Sergeant Sorrells and others, I respectfully recommend that Plaintiff's motion for leave to amend her complaint to add Sergeant Bryan Sorrells be DENIED.
2. Adding a claim for denial of access to the courts
Plaintiff proposes to amend her complaint to add a denial of access to the courts based on Defendants' alleged conspiracy to delete and spoliate the video showing her arrest. Defendants contend that Plaintiff fails to meet the elements necessary to establish said claim.
To sustain a cause of action for denial of access to the courts, a plaintiff must show that (1) the defendant acted deliberately and maliciously, and (2) the plaintiff suffered an actual injury. Collins v. Goord, 581 F.Supp.2d 563, 573 (S.D.N.Y. 2008).
Plaintiff has not alleged that the Defendants acted deliberately and maliciously.
Notably, as mentioned above, a party's duty to preserve evidence “arises when the party has notice of litigation should have anticipated future litigation." Hughes, 2021 WL 4295209 at *9 (internal citation omitted). In Hughes, the Plaintiff filed a Section 1983 claim against the City of New York. The Plaintiff sought sanctions for spoliation of evidence because the NYPD failed to preserve photographs of individuals involved in the incident giving rise to the lawsuit and related 911 dispatch transmissions after it had received the Notice of Claim. Id. The Court found the duty to preserve arose “when Plaintiff served his Notice of Claim on the New York City Law Department.” Id.
Here, Plaintiff filed her Notice of Claim on the 90th day after her arrest. There are no facts asserted that she gave notice that she communicated her desire to file a lawsuit before then sufficient to put the police on notice that they should have known to preserve video of the moment she was handcuffed at her apartment building. Given that the City keeps video for only 30 days, the video was gone before Plaintiff's Notice of Claim was filed and the resulting duty to preserve. Simply following the City's surveillance video retention policy when not under a duty to preserve does not support a plausible inference of deliberate and malicious conduct. Further, there are many cases when video is not available, yet a Plaintiff still can prosecute her claims by providing testimony, including eyewitness testimony. That is, absence of video per se does not result in denial of access to the courts.
Accordingly, I respectfully recommend that Plaintiff's motion for leave to amend her complaint to add a claim of denial of access to the courts be DENIED.
3. Adding a Monell claim
Plaintiff seeks to add a Monell claim alleging that the City's practice of regularly deleting video footage after 30 days, before the 90-day Notice of Claim period and the three-year federal statute of limitation elapses, routinely leads to the spoliation of video evidence.
A plaintiff seeking to bring a Section 1983 claim against a municipality (a Monell claim) must allege that a municipal policy, practice, or custom was the cause of the alleged constitutional deprivation. City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989); Monell v. Dep't of Social Servs., 436 U.S. 658, 694 (1978). Under a theory of Monell liability, a plaintiff must prove the existence of a policy or custom underlying an official action that caused plaintiff's injuries and a causal link between the policy and the deprivation of plaintiff's constitutional rights. Vippolis v. Vill. of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985). “Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker.” City of Okla. City v. Tuttle, 471 U.S. 808, 823-24 (1985).
First and foremost, Plaintiff must plead the deprivation of a constitutional right. Plaintiff appears to argue that she has a constitutional right to require preservation of surveillance video prior to assertion of any claim against the City and without even knowing whether the video contains relevant, usable footage. Said another way, Plaintiff posits that the City must change its policy with respect to generic surveillance footage from the thousands of video cameras across the City and within New York City Housing Authority developments so that such footage is retained for at least 91 days and up to three years. The Court is not aware of, and Plaintiff has not cited, any case supporting such an assertion or basis for finding that the City's policy implicates constitutional rights. Further, Plaintiff fails to allege which constitutional right is even implicated by the City's failure to preserve surveillance footage.
Accordingly, I respectfully recommend that Plaintiff's motion for leave to amend her complaint to add a Monell claim be DENIED.
4. Adding a state law claim for false imprisonment
Plaintiff seeks to delineate a claim for false imprisonment because she was denied a Desk Appearance Ticket after her arrest.
It is customary in the Second Circuit to grant leave to amend "in the absence of a showing by the non-movant of prejudice or bad faith." Block v. First Blood Assocs., 988 F.2d at 350. Courts consider both the lack of prejudice to defendants and the principle that amendments are favored in order "to facilitate a proper decision on the merits." Conley v. Gibson, 355 U.S. 41, 48 (1957). When justice requires, the court should freely give leave to amend. Johnson v. City of Shelby, Miss., 574 U.S. 10, 12 (2014) (quoting Fed.R.Civ.P. 15(a)(2)). A plaintiff is not required to do more than pleading “facts sufficient to show that her claim has substantive plausibility” and “it is unnecessary to set out a legal theory for the plaintiff's claim for relief.” Id. (internal citations and quotations omitted).
Dismissal for failure to include a statement of claim pursuant to Rule 8 is typically reserved for cases where the complaint is “so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.” Hayes v. Dep't of Educ. of City of New York, 20 F.Supp.3d 438, 441 (S.D.N.Y. 2014). Rule 8(a) of the Federal Rules of Civil Procedure only requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief[.]” Fed.R.Civ.P. 8(a). “[S]uch a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.” Hayes, 20 F.Supp.3d at 441 (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002)). Fair notice is defined as “that which will enable the adverse party to answer and prepare for trial, allow the application of res judicata, and identify the nature of the case so that it may be assigned the proper form of trial.” Arbuckle v. City of New York, No. 14-cv-10248 (ER), 2016 WL 5793741, at *10 (S.D.N.Y. Sept. 30, 2016) (quoting Wynder v. McMahon, 360 F.3d 73, 79 (2d Cir. 2004)).
Here, Plaintiff previously included factual allegations to support its state law claim and it now seeks to delineate said claim. As Plaintiff is only required to plead the facts necessary to support its claim and not a legal theory, justice requires granting leave to amend to delineate this legal theory. Marbury Mgmt., Inc. v. Kohn, 629 F.2d 705, 712 n.4 (2d Cir. 1980) (“Generally a complaint that gives full notice of the circumstances giving rise to the plaintiff's claim for relief need not also correctly plead the legal theory or theories and statutory basis supporting the claim.”); see also Brown v. Cty. of Nassau, No. 16-cv-54 (LDW)(AYS), 2016 WL 4995283, at *10 (E.D.N.Y. Sept. 19, 2016) (granting plaintiff's request to file a second amended complaint because plaintiff did not seek to add new causes of action or parties but sought to add factual allegations to claims already alleged).
Accordingly, Plaintiff's motion for leave to amend her complaint to delineate a state law claim of false imprisonment is GRANTED.
CONCLUSION
For the reasons stated above, I respectfully recommend that Plaintiff's motion for leave to amend to add Sergeant Bryan Sorrells as a defendant, add a claim of denial of access to the courts, and add a Monell claim be denied.
The Court grants Plaintiff's motion for leave to amend to substitute Officer Abdul Miah for “John Doe 1” and to delineate a claim for false imprisonment.
NOTICE
The parties shall have fourteen days from the service of this Report and Recommendation to file written objections to the Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days only when service is made under Fed.R.Civ.P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)).
If any party files written objections to this Report and Recommendation, the opposing party may respond to the objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Mary Kay Vyskocil at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Vyskocil. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn , 474 U.S. 140 (1985).