Opinion
19-CV-10567 (PGG) (RWL)
01-22-2024
DINO ANTOLINI, Plaintiff, v. 110 THOMPSON ST OWNERS CORP., et al., Defendants.
HON. PAUL G. GARDEPHE
REPORT AND RECOMMENDATION
ROBERT W. LEHRBURGER, UNITED STATES MAGISTRATE JUDGE.
On November 14, 2019, Plaintiff Dino Antolini (“Antolini”), represented by counsel Stuart H. Finkelstein (“Finkelstein”), filed his complaint against Soseb LLC and Sebastien Pourrat (together, “Tenant Defendants”) and 110 Thompson St Owners Corp. and Lynne Kanter (together, “Landlord Defendants”) pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181 et seq., New York City Human Rights Law, New York State Human Rights Law, and state law negligence principles. (Dkt. 1.) The complaint alleged that Defendants failed to remove or remediate physical barriers prohibiting wheelchair users from accessing their restaurant located at 110 Thompson Street. (Id.) Judge Paul G. Gardephe referred the case to me for general pretrial (Dkt. 11) and then for dispositive motion requiring a Report and Recommendation (“R”&R”) on Defendants' motion to dismiss Antolini's complaint (Dkt. 106).
On September 28, 2020, I issued the R&R dismissing Antolini's claims against Tenant Defendants because his ADA claim against them was moot, as the restaurant was permanently closed, and the Court should decline to exercise supplemental jurisdiction over his remaining state law claims against them; however, I recommended denying dismissal of Antolini's claims against Landlord Defendants. (Dkt. 107.) Judge Gardephe adopted the R&R on July 25, 2023. (Dkt. 113.)
About four months later, on November 29, 2023, I issued an order stating that, since Judge Gardephe adopted the R&R, the Court had not heard from the parties, other than a notice of appearance, and I instructed the parties to provide a status update. (Dkt. 115.) Defendants alone responded. (Dkt. 116.) They informed the Court that Plaintiff's counsel, Finkelstein, had been charged with filing fraudulent ADA lawsuits against various public establishments in New York and Florida on behalf of individuals who neither authorized those lawsuits nor visited those establishments, that Finkelstein had plead guilty to mail fraud, and that his four years' imprisonment was scheduled to begin on November 3, 2023 (before I issued the order asking for a status update). (Id. at 1-2.) Defendants also highlighted that Antolini's identify had never been verified. (Id. at 2.) Defendants stated that “it is possible that [ ] Antolini could be another of [ ] Finkelstein's victims or may not even exist.” (Id.)
Accordingly, the Court issued an order on December 11, 2023 stating that, “[i]n light of [Antolini's] failure to prosecute this case and the history set forth in Defendants' letter filed at Dkt. 116, Plaintiff shall appear in person either pro se or with counsel on January 11, 2024 at 10:30 a.m. in Courtroom 18D, United States Courthouse, 500 Pearl Street, New York, New York, to show cause why this action should not be dismissed with prejudice.” (Dkt. 117.) The order also noted that “Plaintiff's failure to appear will alone be a basis for dismissal.” (Id.) On January 11, 2024, at the Show Cause Hearing, Plaintiff did not appear.
I therefore recommend this action be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b). Rule 41(b) provides, in relevant part, “[i]f the plaintiff fails to prosecute ... a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision ... operates as an adjudication on the merits.” A decision to dismiss an action for failure to prosecute “may be made sua sponte.” Spencer v. Doe, 139 F.3d 107, 112 (2d Cir. 1998) (citing Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993)). Although dismissal is “‘a harsh remedy to be utilized only in extreme situations,'” Hoefer v. Board of Education of the Enlarged City School District of Middletown, 820 F.3d 58, 64 (2d Cir. 2016) (quoting Jackson v. City of New York, 22 F.3d 71, 75 (2d Cir. 1994)), “the authority to invoke it for failure to prosecute is vital to the efficient administration of judicial affairs and provides meaningful access for other prospective litigants to overcrowded courts,” Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 42 (2d Cir. 1982). “Dismissal for failure to prosecute, pursuant to Fed.R.Civ.P. 41(b), is a matter committed to the discretion of the district court.” Romandette v. Weetabix Co., 807 F.2d 309, 312 (2d Cir. 1986) (citing Link v. Wabash Railroad Co., 370 U.S. 626, 633 (1962) and Lyell, 682 F.2d at 43).
A district court considering a dismissal pursuant to Rule 41(b) for failure to prosecute weighs five factors: (1) the duration of the plaintiff's failures; (2) whether plaintiff had received notice that further delays would result in dismissal; (3) whether the defendant is likely to be prejudiced by further delay; (4) whether the district judge has taken care to strike the balance between alleviating court calendar congestion and protecting a party's right to due process and a fair chance to be heard; and (5) whether the judge has adequately assessed the efficacy of lesser sanctions. Martens v. Thomann, 273 F.3d 159, 180 (2d Cir. 2001) (quoting Shannon v. General Electric Co., 186 F.3d 186, 193-94 (2d Cir. 1999)); accord Platinum Funding Corp. v. Bosselli Studio Ltd., 368 Fed.Appx. 207, 208-09 (2d Cir. 2010). No single factor is dispositive. Martens, 273 F.3d at 180.
These factors weigh in favor of dismissal in the instant case. Antolini has failed to take any action in this case since he filed a letter on August 11, 2021. (See Dkt. 109.) Plaintiff's silence for over two years counsels strongly in favor of dismissal; indeed, courts have dismissed for much shorter periods of inaction. See Sanchez v. Bracketron, Inc., 2021 WL 2440663, at *2 (S.D.N.Y. June 15, 2021) (finding this factor supported dismissal where “Plaintiff's inaction span[ned] more than three months”); Chavis v. City of New York, No. 17-CV-9518, 2018 WL 6532865, at *3 (S.D.N.Y. Oct. 12, 2018) (dismissal after a four-month delay), R. & R. adopted, 2018 WL 6528238 (S.D.N.Y. Dec. 11, 2018). Additionally, Antolini was on notice that further delay could result in dismissal in light of the Court's warning in its December 11, 2023 order. (See Dkt. 117.) One warning has been sufficient to find this factor weighs in favor of dismissal. See Leybinsky v. United States Citizenship & Immigration Services, 19-CV-6154, 2020 WL 7295661, at *2 (E.D.N.Y. Dec. 2, 2020) (dismissal after one warning).
As to whether Defendants are likely to be prejudiced by further delay, “[p]rejudice to defendants resulting from unreasonable delay may be presumed,” Lyell, 682 F.2d at 43. Additionally, Defendants suffer prejudice “in the form of wasted time and resources,” Greene v. City of New York, 19-CV-873, 2020 WL 2840521, at *3 (E.D.N.Y. Apr. 23, 2020), R. & R. adopted, 2020 WL 2836785 (E.D.N.Y. June 1, 2020), as they have filed letter briefs for their motion to dismiss. Accordingly, this factor weighs in favor of dismissal.
As for the fourth factor, the Court has a strong interest in managing its docket and cannot indefinitely wait for either Antolini to turn his attention to this case or the confirmation or negation of his existence. Indeed, with Finkelstein incarcerated, there is seemingly no one able to do so. Furthermore, his “failure to comply with the court's order or make an attempt to prosecute this case dismisses his right to have the court hear his claim.” George v. Cousins Printing LLC, 06-CV-6135, 2008 WL 4093057, at *2 (S.D.N.Y. Sept. 2, 2008) (citing Feurtado v. City of New York, 225 F.R.D. 474, 480 (S.D.N.Y. 2004)).
Finally, the Court has no reason to believe that any lesser sanction will succeed in altering Antolini's behavior. Indeed, Antolini could not even be bothered to explain why the case should not be dismissed when he was ordered to do so. See Ruzsa v. Rubenstein & Sendy Attys at Law, 520 F.3d 176, 178 (2d Cir. 2008) (per curiam) (“[I]n light of [plaintiff's] failure to respond to the notice threatening dismissal, it is ... unclear that a lesser sanction would have proved effective in this case”) (citation omitted). Dismissal is therefore the appropriate sanction. See Nava v. Opai Thai Inc., 20-CV-3848, 2021 WL 1873153, at *2 (S.D.N.Y. May 10, 2021) (finding dismissal to be the appropriate sanction where “there [was] nothing in the record to suggest that a sanction less serious tha[n] dismissal will resolve the plaintiff's failure to cooperate”) (citations omitted).
Accordingly, all of the factors weigh in favor of dismissal. For the foregoing reasons, this action should be dismissed pursuant to Fed.R.Civ.P. 41(b) for failure to prosecute.
The Court notes that Landlord Defendants filed crossclaims against Tenant Defendants for contractual indemnification, common law indemnification, contribution, and breach of contract (Dkt. 23), while, similarly, Tenant Defendants have filed crossclaims against Landlord Defendants for common law indemnification, contribution, and breach of contract (Dkt. 25). Additionally, Tenant Defendant Soseb as a Third-Party Plaintiff filed claims of breach of contract, common law indemnification, and contribution against Third-Party Defendant Perry Thompson Third, LLC alleging that Soseb entered a lease agreement with Perry Thompson Third and that, pursuant to the lease agreement, either Perry Thompson Third or 110 Thompson St Owners were responsible for latent defects, building systems, and structural elements of the space. (Dkt. 31.) These claims are moot given dismissal of Plaintiff's claims and should be dismissed without prejudice. See Erickson v. Kassover, No. 09-CV-4274, 2010 WL 1253368, at *3 (S.D.N.Y. March 24, 2010) (“Because the complaint against Phillip Kassover is dismissed with prejudice pursuant to Rule 41(b), there are no claims upon which the Third-Party Defendants can be responsible for contribution”).
Deadline For Filing Objections And Preserving Appeal
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Any party shall have fourteen (14) days to file a written response to the other party's objections. Any such objections and responses shall be filed with the Clerk of the Court, with courtesy copies delivered to the Chambers of the Honorable Paul G. Gardephe, United States Courthouse, 40 Foley Square, New York, New York 10007, and to the Chambers of the undersigned, at United States Courthouse, 500 Pearl Street, New York, New York 10007. Any request for an extension of time for filing objections must be addressed to Judge Gardephe. Failure to file timely objections will result in a waiver of the right to object and will preclude appellate review.
SO ORDERED.