The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DAWN SUTTER,
Plaintiff,
MEMORANDUM OF
-against- DECISION & ORDER
2:18-cv-00817 (ADS) (AKT)
JOSEPH DIBELLO, CAPTAIN, in his official and
personal capacities; JOHN POSILLIPO, CAPTAIN,
in his official and personal capacities; FERN
FISHER, in her official and personal capacities;
JOHN DEMARCO, MAJOR, in his official and
personal capacities; NEW YORK STATE UNIFIED
COURT SYSTEM, OFFICE OF COURT
ADMINISTRATION; JOHN BROWN,
SERGEANT, in his official and personal capacities;
MICHAEL DEMARCO, MAJOR, in his official
and personal capacities; and KEITH BROWN, in
his official and personal capacities,
Defendants.
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SPATT, District Judge:
The Plaintiff brings this action for declaratory, injunctive and equitable relief,
compensatory, liquidated and punitive damages, litigation costs and attorneys’ fees for inter alia,
defamation, race discrimination and retaliation allegedly suffered by her during her employment
by the Defendants in violation of and pursuant to 42 U.S.C §1981, Title VII, New York State
Human Rights Law, New York Executive Law § 296, et seq. (“NYSHRL”), and New York City
Human Rights Law, New York City Administrative Code §§ 8-101, et seq. and 107 (“NYCHRL”).
On March 29, 2019, the Court referred to United States Magistrate Judge A. Kathleen
Tomlinson motions to dismiss the Amended Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of
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the Federal Rules of Civil Procedure filed by (1) Defendants Joseph DiBello, John Posillipo,
Michael DeMarco and Keith Brown and (2) Defendant Fern Fisher.
On August 12, 2019, Judge Tomlinson issued a Report and Recommendation (“R&R”)
recommending that:
Defendants’ motions to dismiss Plaintiff’s Amended Complaint be GRANTED,
and the Amended Complaint be DISMISSED. As to which claims should be
dismissed with prejudice and which claims Plaintiff should be allowed to re-plead,
the Court respectfully recommends as follows:
(1) With respect to Defendants’ motions to dismiss pursuant to Rule 12(b)(1), the
Court recommends that these motions be GRANTED such that all claims in the
Amended Complaint raised against UCS and the Individual Defendants in their
official capacities, except for Plaintiff’s Title VII claims, be dismissed, with
prejudice.
(2) With respect to Defendants’ motions to dismiss pursuant to Rule 12(b)(6), the
Court recommends that:
(a) with respect to Plaintiff’s first and fourth causes of action, as well as
Plaintiff’s ADA claims contained in her ninth cause of action, Defendants’
motions to dismiss be GRANTED, and these claims be dismissed, with
prejudice;
(b) with respect to Plaintiff’s claims (i) for race and sex discrimination,
retaliation, and hostile work environment pursuant to Title VII as set forth
in her ninth cause of action, (ii) her FMLA claims also contained in her
ninth cause of action, (iii) her Section 1983 claims as set forth in her sixth
cause of action, (iv) her Section 1981 claims as set forth in her fifth cause
of action, (v) her NYSHRL claims as set forth in her second cause of action,
(vi) her NYCHRL claims as set forth in her third cause of action, (vii) her
claim for civil assault as set forth in her eighth cause of action, Defendants’
motions to dismiss be GRANTED, and these claims be dismissed, without
prejudice.
(c) with respect to Plaintiff’s false imprisonment claims as set forth in the
seventh cause of action, the motion to dismiss be GRANTED, with
prejudice.
R&R at 55-56. Judge Tomlinson electronically served a copy of the R&R on all parties the same
day.
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It has been more than fourteen days since the service of the R&R, and the parties have not
filed objections.
As such, pursuant to 28 U.S.C. § 636(b) and Federal Rule of Civil Procedure 72, this Court
has reviewed the R&R for clear error, and finding none, now concurs in both its reasoning and its
result. See Coburn v. P.N. Fin., No. 13-CV-1006 (ADS) (SIL), 2015 WL 520346, at *1 (E.D.N.Y.
Feb. 9, 2015) (reviewing Report and Recommendation without objections for clear error).
Accordingly, the R&R is adopted in its entirety. The Court grants the Defendants’ motions
to dismiss with leave to re-plead as recommended by the R&R. The Plaintiff is directed to file a
Second Amended Complaint consistent with the R&R no later than 30 days from the issuance of
this order.
SO ORDERED.
Dated: Central Islip, New York
September 4, 2019
___/s/ Arthur D. Spatt_______
ARTHUR D. SPATT
United States District Judge
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