Binns-Harty-Bolt v. McDonough ( 2024 )

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK setae atnenaei nage eee ene eeee nee neers RINELLA C. BINNS-HARTY-BOLT, 21 Civ. 7276 (PAE)(BCM) Plaintiff, : -V- : OPINION & ORDER DENIS R. MCDONOUGH, Secretary, Department of Veterans Affairs, : Defendant. PAUL A. ENGELMAYER, District Judge: Currently pending is a motion by defendant Denis R. McDonough, in his official capacity as Secretary of the United States Department of Veterans Affairs, to dismiss the hostile work environment cause of action in plaintiff Rinella C. Binns-Harty-Bolt’s Third Amended Complaint (“TAC”) for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dkts, 28, 90. Before the Court is the June 21, 2024 Report and Recommendation of the Hon. Barbara C. Moses, United States Magistrate Judge, recommending that the Court grant defendant’s motion. Dkt. 106 (“Report”). The Court incorporates by reference the summary of the facts provided in the Report. For the following reasons, the Court adopts this recommendation. . DISCUSSION In reviewing a Report and Recommendation, a district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). “To accept those portions of the report to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record.” Ruiz v. Citibank, N.A., No. 10 Civ. 5950 (KPF), 2014 WL 4635575, at *2 (S.D.N.Y. Aug. 19, 2014) (quoting King v. Greiner, No. 02 Civ. 5810 (DLC), 2009 WL 2001439, at *4 (S.D.N.Y. July 8, 2009)); see also, e.g., Wilds v. United Parcel Serv., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003). As no party has submitted objections to the Report, review for clear error is appropriate. Careful review of Judge Moses’s thorough and well-reasoned Report reveals no facial error in its conclusions; the Report is therefore adopted in its entirety. Because the Report explicitly states that “[flailure to file timely objections will result in a waiver of such objections and will preclude appellate review,” Report at 17, the parties’ failure to object operates as a waiver of appellate review. See Caidor vy. Onondaga Cty., 517 F.3d 601, 604 (2d Cir. 2008) (citing Smail y. Sec’y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam)). CONCLUSION For the foregoing reasons, the Court denies grants defendant’s motion to dismiss the TAC’s second cause of action without further leave to amend. The Clerk of Court is respectfully directed to terminate the motion pending at Docket 90. SO ORDERED. Lon fa. La dn ABT Paul A. Engelmayer United States District Judge Dated: July 10, 2024 New York, New York