Stark Truss Company. Inc. v. Affinity Elmwood Gateway Properties, LLC ( 2023 )

ATES DISTR} KO FILED Le UNITED STATES DISTRICT COURT Ss □ WESTERN DISTRICT OF NEW YORK JUL 05 2023 a Ay, et lyestte LOEWENGUTH. a wih STARK TRUSS COMPANY, INC., ERN DISTRICT Plaintiff, v. 22-CV-979 (JLS) (JJM) AFFINITY ELMWOOD GATEWAY PROPERTIES, LLC, RP OAK HILL BUILDING COMPANY, INC., MERCHANTS BONDING COMPANY (MUTUAL), Defendants. DECISION AND ORDER Plaintiff Stark Truss Company commenced this action on December 16, 2022, alleging claims against Defendants Affinity Elmwood Gateway Properties, LLC, RP Oak Hill Building Company, Inc., and Merchants Bonding Company (Mutual) related to a construction project in the City of Buffalo. See Dkt. 1. As relevant here, Stark Truss alleges claims against Defendant RP Oak Hill—an entity Stark Truss describes as the construction manager of the project—for fraud (Count IV), neghgent misrepresentation (Count V), promissory estoppel (Count V1), and negligence (Count VII). See id. at 13-17. Defendant RP Oak Hill moved to dismiss the complaint as against it. Dkt. 31. Stark Truss opposed the motion (Dkt. 47), and RP Oak Hill replied in further support (Dkt. 50). After hearing oral argument, on May 9, 2023, Judge McCarthy issued a Report and Recommendation (R&R),! recommending that this Court grant RP Oak Hill’s motion to dismiss the complaint as against it. Dkt. 53. Neither party objected to the R&R, and the time to do so has expired. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). A district court may accept, reject, or modify the findings or recommendations of a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(8). A district court must conduct a de novo review of those portions of a magistrate judge’s recommendation to which a party objects. See 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(8). But neither 28 U.S.C. § 636 nor Federal Rule of Civil Procedure 72 requires a district court to review the recommendation of a magistrate judge to which no objections are raised. See Thomas v. Arn, 474 U.S. 140, 149-50 (19885). Though not required to do so here, this Court nevertheless reviewed Judge McCarthy’s R&R. Based on that review, and absent any objections, the Court accepts and adopts the R&R. For the reasons stated above and in the R&R, the Court grants Defendant RP Oak Hill’s motion to dismiss (Dkt. 31). The complaint as against RP Oak Hill is dismissed. The Clerk of Court shall terminate RP Oak Hill as a Defendant to this action. The Court refers the case back to Judge McCarthy, consistent with the 1 On February 21, 2023, this Court referred the case to Judge McCarthy for all pretrial matters, pursuant to 28 U.S.C. §§ 636(b)(1)(A)-(C). See Dkt. 33. referral order at Dkt. 33, for further proceedings as to the remaining parties in this action. SO ORDERED. Dated: duly 5, 2023 Buffalo, New York JOWN/L. SINATRA, JR. UNJAED STATES DISTRICT JUDGE