Welch v. Bio-Reference Laboratories, Inc.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

ERNESTINE WELCH,

Plaintiff, 1:23-cv-664 (BKS/DJS)

v.

BIO-REFERENCE LABORATORIES, INC.,

Defendant.

Appearances:

Plaintiff pro se:

Ernestine Welch

Hudson, NY 12534

Hon. Brenda K. Sannes, Chief United States District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff pro se Ernestine Welch filed this action seeking to recover the “lost time-value

of money” that Defendant allegedly wrongfully withheld as taxes from an $18,000 settlement in

a prior action. (Dkt. No. 1); see Welch v. Boi-Reference Laboratories, Inc. (“Welch I”), No. 19-

cv-846 (BKS/DJS). This matter was referred to United States Magistrate Judge Daniel J. Stewart

who, on July 24, 2023, granted Plaintiff’s application to proceed in forma pauperis, and issued a

Report-Recommendation, recommending that Plaintiff’s Complaint be dismissed for failure to

allege federal question jurisdiction, but recommended that leave to amend be granted. (Dkt. No.

6). Plaintiff filed an Amended Complaint on September 8, 2023. (Dkt. No. 9). On February 20,

2024, Magistrate Judge Stewart issued a second Report-Recommendation, recommending that

Plaintiff’s Amended Complaint be dismissed with leave to amend for failure to adequately allege

the amount in controversy necessary to establish diversity jurisdiction under 28 U.S.C. § 1332.

(Dkt. No. 11). On April 18, 2024, this Court adopted the second Report-Recommendation in its

entirety. (Dkt. No. 15). On May 22, 2024, Plaintiff filed a Second Amended Complaint, which

was referred to Magistrate Judge Stewart for initial review. (Dkt. No. 16). On September 19,

2024, Magistrate Judge Stewart issued a Report-Recommendation recommending dismissal of

Plaintiff’s Second Amended Complaint. (Dkt. No. 17). Presently before the Court are Plaintiff’s

objections to the Report-Recommendation. (Dkt. No. 20). For the reasons set forth below, the

Report-Recommendation is adopted in its entirety.

II. STANDARD OF REVIEW

This Court reviews de novo those portions of the Magistrate Judge’s findings and

recommendations that have been properly preserved with a specific objection. Petersen v.

Astrue, 2 F. Supp. 3d 223, 228–29 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). “A proper

objection is one that identifies the specific portions of the [report-recommendation] that the

objector asserts are erroneous and provides a basis for this assertion.” Kruger v. Virgin Atl.

Airways, Ltd., 976 F. Supp. 2d 290, 296 (E.D.N.Y. 2013) (quotation omitted). Properly raised

objections must be “specific and clearly aimed at particular findings” in the report. Molefe v.

KLM Royal Dutch Airlines, 602 F. Supp. 2d 485, 487 (S.D.N.Y. 2009) (citation omitted).

“[E]ven a pro se party’s objections to a Report and Recommendation must be specific and

clearly aimed at particular findings in the magistrate’s proposal . . . .” Machicote v. Ercole, No.

06-cv-13320, 2011 WL 3809920, at *2, 2011 U.S. Dist. LEXIS 95351, at *4 (S.D.N.Y. Aug. 25,

2011) (citation omitted). Findings and recommendations as to which there was no properly

preserved objection are reviewed for clear error. Id.

III. REPORT-RECOMMENDATION

In the Report-Recommendation Magistrate Judge Stewart recommended dismissal of the

“federal discrimination claims regarding Plaintiff’s past employment with Defendant,” (Dkt. No.

17, at 2 (citing Dkt. No. 16, at 8)), on the ground that “those claims . . . were expressly resolved

as part of the settlement in Welch I,” and Plaintiff could not “relitigate those claims here,” (id. at

3). Turning to Plaintiff’s remaining state law claims, Magistrate Judge Stewart noted that the

Court had previously dismissed the Amended Complaint for lack of diversity jurisdiction under

28 U.S.C. § 1332, because “Plaintiff had not sufficiently alleged that any claim regarding the

taxation of [the $18,000 in] settlement proceeds, or the lost time value of money satisfied the

$75,000 amount in controversy requirement.” (Dkt. No. 17, at 3 (citing Dkt. No. 11, at 3–4)).

After reviewing the Second Amended Complaint, which alleged racial discrimination claims in

violation of state law, as well as state law claims of fraud and defamation stemming from

Defendant’s allocation of the $18,000 settlement of Welch I, Magistrate Judge Stewart found

“[n]othing” that changed the amount in controversy requirement “given that the entire amount of

the settlement in Welch I was $18,000.” (Id. at 3). Magistrate Judge Stewart nonetheless

considered the viability of Plaintiff’s newly alleged claims.1

As to Plaintiff’s claims of racial discrimination, in violation of New York State Human

Rights Law (“NYSHRL”), N.Y. Exec. Law § 196, Magistrate Judge Stewart concluded that even

1 Plaintiff’s allegation regarding the lost time value of the money deducted from her settlement payment as taxes does

not appear to be an independent cause of action, but a theory of injury for her present claims. See Porsch v. LLR, Inc.,

380 F. Supp. 3d 418, 424, 428 (S.D.N.Y. 2019) (finding the “temporary deprivation of money to which a plaintiff has

a right constitutes a sufficient injury in fact to establish Article III standing” for the plaintiff’s two causes of action,

deceptive acts and practices in violation of New York General Business Law § 349 and conversion under New York

law, based on the defendant’s allegedly wrongful charging of state sales tax on purchases when no sales tax was

owed); Rosario v. Icon Burger Acquisition LLC, No. 21-cv-4313, 2022 WL 17553319, at *3, 2022 U.S. Dist. LEXIS

222321, at *7 (E.D.N.Y. Dec. 9, 2022) (finding lost time value of money theory of injury sufficiently alleged Article

III standing for New York Labor Law claim, explaining that courts have recognized that “the late payment of wages

can constitute a concrete harm sufficient to confer standing on a plaintiff who seeks relief under Sections 191 and 198

of the NYLL.”) (quotation marks omitted) (citing cases).

assuming such claims were not “covered by the settlement in Welch I,” because the conduct “is

alleged to have occurred in 2018,” “such a claim would now be barred by the three year statute

of limitations governing such claims.” (Id. at 3). As to Plaintiff’s claims of fraud and defamation,

Magistrate Judge Stewart found the Second Amended Complaint failed to satisfy the

requirements of Federal Rule of Civil Procedure 9(b), which requires that a pleading “state with

particularity the circumstances constituting fraud,” and that Plaintiff failed to allege that

Defendant made a false statement, a necessary element of a defamation claim. (Id. at 4).

IV. DISCUSSION

A. Objections to the Report-Recommendation

Plaintiff objects to Magistrate Judge Stewart’s calculation of the amount in controversy,

asserting that the Second Amended Complaint “seeks damages at stake for more than $75,000,

based on Lost Time-value of money.” (Dkt. No. 20, at 9). Plaintiff objects to Magistrate Judge

Stewart’s conclusion that the statute of limitations bars her state law racial discrimination claims,

arguing that she is entitled to equitable tolling as she has been litigating this matter since 2019,

when she commenced Welch I. (Id. at 11). Plaintiff objects to dismissal of her fraud claim on the

ground that the transcript of the February 16, 2021 hearing in Welch I show that Defendant knew

the settlement payment was “misrepresented.” (Id.). Plaintiff also objects to the dismissal of her

defamation claim, arguing that Defendant’s issuance of the settlement check stating that Plaintiff

is an “employee” and characterizing the pay as “severance pay” constitutes a false statement. (Id.

at 11–12).

Plaintiff has not raised any objections to the Report-Recommendation’s recitation of the

procedural history, summary of legal standards, or recommended dismissal of her federal

discrimination claims. (See Dkt. No. 17, at 1–3). The Court therefore adopts these aspects of the

Report-Recommendation, finding no clear error therein. See Kruger, 976 F. Supp. 2d at 296.

B. Analysis

1. Amount In Controversy

Plaintiff appears to object to Magistrate Judge Stewart’s conclusion that tax

consequences of the $18,000 settlement at issue in this case did not satisfy the $75,000 amount in

controversy requirement of the diversity statute on the ground that damages should include the

“damages based on the nature initial claims of suit,” namely, the employment discrimination

claims that were at issue in Welch I. (Dkt. No. 20, at 9). However, as Magistrate Judge Stewart

previously explained, Plaintiff’s present claim concerning the lost time-value of the money

deducted as taxes from the $18,000 settlement of Welch I, “is a private dispute between private

parties solely about the proper allocation of a settlement payment.” (Dkt. No. 17, at 3). Plaintiff

cites no factual or legal basis for adding the initial value of the discrimination claims that were

settled for $18,000 in Welch I to the present action, which seeks a restoration of the $5,497.80 in

withheld taxes from the $18,000 settlement. (Dkt. No. 20, at 8–9). Further, Plaintiff’s lost time-

value of money, fraud, and defamation claims are all based on the characterization of the

settlement as severance, which subjected her to damages in the form of increased tax

consequences in the amount of $5,497.80 and thus constitute three theories of recovery for one

award of damages. Pollock v. Trustmark Ins. Co., 367 F. Supp. 2d 293, 301 (E.D.N.Y. 2005)

(explaining that “[n]o case . . . allows the aggregation of claims which seek the same damages in

claims under varying theories”). But even aggregated, the amount in controversy does not exceed

$75,000.

Even if Plaintiff satisfied the amount in controversy, the Court agrees with Magistrate

Judge Stewart that Plaintiff’s remaining discrimination, fraud, and defamation claims must be

dismissed.

2. State Racial Discrimination Claims

As Plaintiff concedes, her NYSHRL racial discrimination claims arose in 2018. (Dkt. No.

20, at 10–11). NYSHRL racial discrimination claims “are subject to a three-year statute of

limitations.” Bermudez v. City of New York, 783 F. Supp. 2d 560, 573 (S.D.N.Y. 2011) (citing

Kassner v. 2nd Avenue Delicatessen Inc., 496 F.3d 229, 238 (2d Cir. 2007)). Plaintiff

commenced this action on June 5, 2023. (Dkt. No. 1). Plaintiff argues, however, that she is

entitled to equitable tolling during the pendency of Welch I, where she began litigating her Title

VII racial discrimination claims in 2019, and acted diligently through the appeal process. (Dkt.

No. 20, at 11). “Generally, a litigant seeking equitable tolling bears the burden of establishing

two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary

circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Here, nothing

in the Second Amended Complaint or elsewhere in the record suggests that some “extraordinary

circumstance” stood in the way of Plaintiff filing state racial discrimination claims until she filed

the instant action on June 5, 2023. Id. Accordingly, Plaintiff’s objection is without merit.

3. Fraud

Plaintiff’s fraud claim is based on the settlement check in which Defendants by

characterizing the payment as “severance pay” allegedly “presented false character of pay which

resulted in tax damages, and loss of income.” (Dkt. No. 16, at 10). Plaintiff objects to Magistrate

Judge Stewart’s finding that she failed to specifically identify the fraudulent representations at

issue, asserting that Defendant misrepresented the settlement payment as severance pay, and

“provided false nature of claim,” and Plaintiff “relied on it to seek overpayment in taxes.” (Dkt.

No. 20, at 11(citing Welch I, Dkt. No. 42, at 11 (transcript of status conference where

Defendant’s attorney stated that “some person internally at the company indicated severance” on

the earning statement accompanying Plaintiff’s settlement payment )).

“To state a claim for fraud under New York law, a plaintiff must allege (1) a material

misrepresentation or omission of fact; (2) which the defendant knew to be false; (3) which the

defendant made with the intent to defraud; (4) upon which the plaintiff reasonably relied; and (5)

which caused injury to the plaintiff.” Valcarcel v. Ahold U.S.A., Inc., 577 F. Supp. 3d 268, 280

(S.D.N.Y. 2021) (quoting Fin. Guar. Ins. Co. v. Putnam Advisory Co., LLC, 783 F.3d 395, 402-

03 (2d Cir. 2015)). A claim for common-law fraud is subject to the particularity requirements of

Rule 9(b) of the Federal Rules of Civil Procedure, which require that the complaint “state with

particularity the circumstances constituting fraud.” Id. at 280–81 (quoting Fed. R. Civ. P. 9(b));

see also MacNaughton v. Young Living Essential Oils, LC, 67 F.4th 89, 99 (2d Cir. 2023).

Here, while it is clear that Plaintiff claims her settlement payment should not have been

designated as severance pay, there are no factual allegations that would support a plausible

inference that at the time of issuance of the payment, Defendant knew the “severance”

designation to be false, or interfered at some later time with Plaintiff’s efforts to recover the

taxes deducted by making a false representation to the Internal Revenue Service or otherwise.

Accordingly, Plaintiff’s objection to dismissal of her fraud claim is without merit.

4. Defamation

Plaintiff’s defamation claim alleges that Defendant’s “false statement of facts”—

specifically, that the settlement was “severance pay”—“caused tax damages and loss of income.”

(Dkt. No. 16, at 11). Magistrate Judge Stewart recommended dismissal based on Plaintiff’s

failure to allege “that Defendant made a false statement.” (Dkt. No. 17, at 4). Plaintiff objects

asserting that Defendant engaged in “employment-related defamation” and asserts that this case

involves “false statements made by employer about an employee’s pay,” that Defendant failed to

state that the settlement payment was for “discrimination, back pay,” and that this statement

harmed her financially. (Dkt. No. 20, at 11–12).

“Under New York law, to state a claim for defamation, a plaintiff must allege ‘(1) a

written [or spoken] defamatory statement of and concerning the plaintiff, (2) publication to a

third party, (3) fault, (4) falsity of the defamatory statement, and (5) special damages or per se

actionability.’” Kesner v. Dow Jones & Co., Inc., 515 F. Supp. 3d 149, 169–70 (S.D.N.Y. 2021)

(quoting Palin v. N.Y. Times Co., 940 F.3d 804, 809 (2d Cir. 2019)). Even assuming the

statement that the settlement was “severance” pay constitutes a false statement sufficient for

purposes of a defamation claim, see Davis v. Boeheim, 24 N.Y.3d 262, 269 (N.Y. 2014) (“a false

statement ‘that tends to expose a person to public contempt, hatred, ridicule, aversion or

disgrace.’” (quoting Thomas H. v Paul B., 18 N.Y.3d 580, 584 (N.Y. 2012)), there are no

allegations that plausibly allege special damages or defamation per se, see Kesner, 515 F. Supp.

3d at 171 (“Special damages are those that involve the ‘loss of something having economic or

pecuniary value which must flow directly from the injury to reputation caused by the

defamation.’”) (citation omitted); id. (explaining that “[s]tatements that are defamatory per se

‘are actionable without pleading and proof of special damages,’” including “those that ‘charge

the plaintiff with a serious crime’ and those that ‘tend to injure another in his or her trade,

business or profession.’”) (citations omitted). Accordingly, Plaintiff’s objection to the

recommended dismissal of her defamation claim is without merit.

V. CONCLUSION

For these reasons, it is hereby

ORDERED that Magistrate Judge Stewart’s Report-Recommendation (Dkt. No. 17) is

ADOPTED; and it is further;

ORDERED that Plaintiff’s Second Amended Complaint (Dkt. No. 16) is DISMISSED

without prejudice and without leave to amend; and it is further

ORDERED that the Clerk is directed to close this case and serve a copy of this Order on

Plaintiff in accordance with the Local Rules.

IT IS SO ORDERED.

Dated: February 21, 2025

Syracuse, New York

Promda (Gurnee

Brenda K. Sannes

Chief U.S. District Judge

2022 WL 17553319 case which are detailed in the Court's earlier decision. See

Only the Westlaw citation is currently available. Rosario v. Icon Burger Acquisition LLC, No. 21-CV-4313,

United States District Court, E.D. New York. 2022 WL 198503, at *1-2 (E.D.N.Y. Jan. 21, 2022) (hereafter

“Rosario I”).1 Nevertheless, the Court provides the following

Joseph ROSARIO, Noah Zaharia, and summary for the reader's convenience.2

Olivia Spell, individually and on behalf

of all others similarly situated, Plaintiffs, “Defendant owns a chain of hamburger restaurants that

v. employs thousands of manual workers in the State of New

ICON BURGER ACQUISITION York.” (SAC, ECF No. 26, ¶ 10.) Plaintiffs were each

LLC dba Smashburger, Defendant. employed by Defendant in various capacities; however,

all Plaintiffs aver that twenty-five percent of their job

21-CV-4313 (JS)(ST) responsibilities involved manual labor. (Id. ¶¶ 11-13.)

|

Signed December 9, 2022 Plaintiffs allege that under NYLL, Article 6, § 191, Defendant

was required to pay its manual workers “on a weekly

Attorneys and Law Firms

basis unless they receive[d] an express authorization [to the

For Plaintiffs: Yitzchak Kopel, Esq., Alec Mitchell Leslie, contrary ... from the New York State Department of Labor

Esq., Bursor & Fisher, P.A., 888 7th Avenue, 3rd Floor, New Commissioner.” (Id. ¶ 2.) Plaintiffs allege that Defendant did

York, New York 10106. not receive such authorization and thus violated NYLL § 191

by paying its manual workers biweekly instead of weekly. (Id.

For Defendant: Daniel Sergio Gomez-Sanchez, Esq. ¶¶ 3, 5.)

Matthew R. Capobianco, Esq., Littler Mendelson, P.C., 290

Broadhollow Road, Suite 305, New York, New York 11747. Plaintiffs originally made identical allegations in their First

Amended Complaint. (ECF No. 10.) However, in Rosario

I, this Court determined that Plaintiffs’ complaint was

MEMORANDUM & ORDER “barebones” and “contain[ed] no facts from which the

Court could plausibly conclude that [they] actually suffered

SEYBERT, District Judge: the sort of harm that would entitle [them] to relief.”

Rosario I, 2022 WL 198503, at *3. Indeed, Plaintiffs’ First

*1 Presently before the Court is Defendant's Motion to Amended Complaint simply stated that “Defendant failed to

Dismiss Plaintiffs’ Second Amended Complaint (hereafter pay Plaintiff and the Class on a timely basis as required

“SAC”) pursuant to Federal Rules of Civil Procedure 12(b) by the NYLL,” and, thus, Plaintiff and the class were

(1) and 12(b)(6). (Mot. at 1, ECF No. 29.) Defendant argues: entitled to damages. Id. Recognizing that under Maddox and

(1) that Plaintiffs lack Article III standing because they have TransUnion Plaintiffs’ complaint was insufficient to allege a

failed to specify a particularized and actual injury; and (2) concrete injury but acknowledging that “the late payment of

that New York Labor Law (“NYLL”) § 191 does not afford a wages [could] constitute a concrete harm sufficient to confer

private right of action for untimely wages that have been paid standing on a plaintiff who seeks relief under Sections 191 and

in full. (Support Memo, ECF No. 32, at 1-2.) If its motion is 198 of the NYLL,” id., the Court sua sponte directed Plaintiffs

not granted, Defendant seeks an order pursuant to the Federal to amend their complaint. Id. at *4.

Arbitration Act, 9 U.S.C. §§ 3-4, compelling Plaintiff Rosario

to individually arbitrate his claims. (Id.) *2 On February 21, 2022, Plaintiffs filed their SAC. (See

SAC, ECF No. 26.) While many of the factual allegations

For the reasons that follow, Defendant's Motion to Dismiss is remain the same, Plaintiffs now allege that they were injured

DENIED. by Defendant's late payments because they were “temporarily

deprived of money owed.” (Id., ¶¶ 11-13.) Consequently, they

“could not invest, earn interest on, or otherwise use” money

BACKGROUND that was rightfully theirs and that “every day that said money

value of that money.” (Id.) of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014)).

Defendant filed the instant motion on March 21, 2022, “The standard of review for a motion to dismiss under Rule

seeking dismissal of the SAC pursuant to Federal Rules 12(b)(6) ... is ‘substantively identical’ to the Rule 12(b)(1)

of Civil Procedure 12(b)(1), and 12(b)(6). (See Mot. at 1; standard.” Epstein v. JPMorgan Chase & Co., 2014 WL

see also Support Memo at 1.) Defendant argues that: (1) 1133567, at *5 (S.D.N.Y. Mar. 21, 2014) (quoting Lerner

Plaintiffs lack Article III standing because they fail to specify v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir. 2003)),

a particularized and actual injury; (2) NYLL § 191 does abrogation on other grounds recognized by Am. Psychiatric

not afford a private right of action for untimely wages that Ass'n v. Anthem Health Plans, Inc., 821 F.3d 352, 359 (2d

have been paid in full; and (3) if the Motion to Dismiss is Cir. 2016). When considering a motion to dismiss under

not granted, that Plaintiff Rosario's claim must be dismissed Rule 12(b)(6), the court must “accept as true all factual

because he is bound by agreement to individually arbitrate statements alleged in the complaint and draw all reasonable

and not litigate his claims. (Support Memo at 1-2.) inferences in favor of the non-moving party.” McCarthy v.

Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007).

Plaintiffs filed their opposition on April 18, 2022. (Opp'n, To survive a motion to dismiss under Federal Rule of Civil

ECF No. 35). In sum, Plaintiffs counter that: (1) they have Procedure 12(b)(6), a complaint must state “enough facts

Article III standing because they have adequately pled a lost to state a claim to relief that is plausible on its face.” Bell

time value of money theory of injury; (2) appellate state Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim

court precedent already establishes a private right of action is plausible “when the plaintiff pleads factual content that

under NYLL § 191; and (3) Plaintiff Rosario consents to his allows the court to draw the reasonable inference that the

dismissal from this action. defendant is liable for the misconduct alleged.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). Consequently, a complaint is

properly dismissed where, as a matter of law, “the allegations

in a complaint, however true, could not raise a claim of

ANALYSIS

entitlement to relief.” Twombly, 550 U.S. at 558. Similarly, a

I. Legal Standard complaint is also properly dismissed “where the well-pleaded

“A case is properly dismissed for lack of subject matter facts do not permit the court to infer more than the mere

jurisdiction under Rule 12(b)(1) when the district court possibility of misconduct.” Iqbal, 556 U.S. at 679.

lacks the statutory or constitutional power to adjudicate

it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir.

II. Discussion

2000). While the Court must “generally accept the truth

of a plaintiff's allegations at the motion to dismiss stage, A. Plaintiffs have Article III Standing.

the plaintiff still ‘bears the burden of alleging facts that *3 Establishing Article III standing requires a plaintiff to

affirmatively and plausibly suggest that [the plaintiff] has show: “(1) an ‘injury in fact,’ (2) a ‘causal connection’

standing to sue.’ ” Calcano v. Swarovski N. Am. Ltd., 36 F.4th between that injury and the conduct at issue, and (3) a

68, 75 (2d Cir. 2022) (quoting Cortland St. Recovery Corp. v. likelihood ‘that the injury will be redressed by a favorable

Hellas Telecomms., S.a.r.l., 790 F.3d 411, 417 (2d Cir. 2015)). decision.’ ” Maddox v. Bank of N.Y. Mellon Tr. Co., 19 F.4th

Thus, while the Court “must take all facts alleged in the 58, 62 (2d Cir. 2021) (quoting Lujan v. Defs. of Wildlife, 504

complaint as true and draw all reasonable inferences in favor U.S. 555, 560-61 (1992)).

of [the] plaintiff ... ‘jurisdiction must be shown affirmatively,

and that showing is not made by drawing from the pleadings “To demonstrate injury in fact, a plaintiff must show the

inferences favorable to the party asserting it.’ ” Rosenberg v. invasion of a [1] legally protected interest that is [2]

McCarthy, Burgess & Wolff, Inc., No. 21-CV-2199, 2022 WL concrete and [3] particularized and [4] actual or imminent,

3030390, at *2 (E.D.N.Y. Aug. 1, 2022) (quoting Morrison not conjectural or hypothetical.” Id. at 62 (citing Strubel

v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008)). v. Comenity Bank, 842 F.3d 181, 188 (2d Cir. 2016)).

“Ultimately, ‘the party asserting subject matter jurisdiction In analyzing whether a harm is “concrete” for purposes

has the burden of proving by a preponderance of the evidence of Article III standing, “courts should assess whether the

lawsuit in American Courts.” TransUnion LLC v. Ramirez, deprivation of such time value is a concrete harm.”).

141 S.Ct. 2190, 2204 (2021). Additionally, “certain harms

readily qualify as concrete injuries under Article III,” the most *4 Here, it is Plaintiff's burden to prove standing and it

obvious being “traditional tangible harms, such as physical would have been improper for the Court to infer injury from

harms and monetary harms.” Id. Defendant's frequency of pay violation when Plaintiff failed

to affirmatively plead any injury whatsoever in Rosario I. See

While “the pleading standard for constitutional standing is Kawa Orthodontics, LLP v. Sec'y, U.S. Dep't Treasury, 773

lower than the standard for a substantive cause of action,” a F.3d 243, 246 (11th Cir. 2014) (finding that where plaintiff

plaintiff must, nevertheless, “ ‘plead enough facts to make did not mention interest or suggest “specific plans to invest

it plausible that they did indeed suffer the sort of injury its money into an interest-bearing asset,” the court could not

that would entitle them to relief.’ ” Maddox, 19 F.4th at “hypothesize or speculate about the existence of an injury

65-66 (quoting Harry v. Total Gas & Power N. Am., Inc., [plaintiff] did not assert”); Epstein v. JPMorgan Chase & Co.,

889 F.3d 104, 110 (2d Cir. 2018)). Thus, “[a]t the pleading No. 13-CV-4744, 2014 WL 1133567, at *7 n.6 (S.D.N.Y. Mar.

stage, ‘general factual allegations of injury resulting from the 21, 2014) (Declining to infer standing based on plaintiff's lost

defendant's conduct may suffice.’ ” Wilson v. Mastercard Inc., “opportunity to use and/or earn interest” where plaintiff failed

No. 21-CV-5930, 2022 WL 3159305, at *3 (S.D.N.Y. Aug. to “make this claim in his papers” and, therefore, dismissing

8, 2022) (quoting Spokeo Inc. v. Robins, 578 U.S. 330, 338 plaintiff's complaint for lack of Article III standing); Barber

(2016)). v. Lincoln Nat'l Life Ins. Co., 260 F. Supp. 3d 855, 862 (W.D.

Ky. 2017) (“The complaint makes no particularized allegation

Here, Plaintiffs affirmatively allege that they have been that [plaintiff] lost the time value of money ... It may be

injured by Defendant's frequency of pay violations because implied by the nature of [plaintiff's] allegations that ... he lost

“every day that [Plaintiffs’] money was not paid ... in a the opportunity to grow that money through investment. But

timely fashion” they each lost the time value of that money. the Court cannot find injury via implication....”).

(SAC at ¶¶ 11-13.) Specifically, Plaintiffs state that they were

deprived of the opportunity to “invest, earn interest on, or While Plaintiff's current allegations remain “on the light

otherwise use” their improperly withheld wages. (Id.) This side and do not contain detail on how the late payment

Court and many others within this Circuit have recognized specifically harmed [them],” Elhassa, 2022 WL 563264, at *2

that “the late payment of wages can constitute a concrete harm (emphasis added), the Court agrees with other courts in this

sufficient to confer standing on a plaintiff who seeks relief Circuit that it is sufficient for Plaintiffs to affirmatively plead

under Sections 191 and 198 of the NYLL.” Rosario I, 2022 injury through the allegation that they were “temporarily

WL 198503, at *3; see also Porsch v. LLR, Inc., 380 F. Supp. deprived of money owed,” and, consequently, were unable

3d 418, 424 (S.D.N.Y. 2019) (“[T]emporary deprivation of to “invest, earn interest on, or otherwise use” money that

money to which a plaintiff has a right constitutes a sufficient was rightfully theirs. (SAC at ¶¶ 11-13.) Accord Harris v.

injury in fact to establish Article III standing.”); Caul v. Petco Old Navy, LLC, No. 21-CV-9946, 2022 WL 16941712, at *4

Animal Supplies, No. 20-CV-3534, 2021 WL 4407856, at (S.D.N.Y. Nov. 15, 2022) (distinguishing the Harris complaint

*4 (S.D.N.Y. Sept. 27, 2021) (“[T]he late payment of wages with the complaint in Rosario I noting that “the complaint

is a concrete harm.”); Gillet v. Zara USA, Inc., No. 20- in Rosario [I] ... [never describ[ed]] what the harm was” but

CV-3734, 2022 WL 3285275, at *6 (S.D.N.Y. Aug. 10, 2022) that Harris had affirmatively alleged that she was denied the

(“Irrespective of the fact that Plaintiff ultimately received the ability to “ ‘invest, save, or purchase’ using the wages she was

entire sum of wages he was owed, this delay of payment, owed,” thereby satisfying the injury requirements of Article

in and of itself, constitutes a concrete harm that suffices III standing).

for purposes of Article III.”); Elhassa v. Hallmark Aviation

Servs., L.P., No. 21-CV-9768, 2022 WL 563264, at *2

(S.D.N.Y. Feb. 24, 2022) (citing Caul and noting that the B. Section 198 of the NYLL Provides a Private Right of

Caul court held “the late payment of wages is a concrete Action for a Violation of Section 191.

harm”); Levy v. Endeavor Air Inc., No. 21-CV-4387, 2022 Section 191 of the NYLL states that “[a] manual worker

WL 16645829, at *3 (E.D.N.Y. Nov. 1, 2022) (“[C]ourts have shall be paid weekly and not later than seven calendar days

routinely found that the time value of money is real and after the end of the week in which the wages are earned”

than weekly.” NYLL § 191(a)(i)-(ii). Further, under § 198(1- Department's holdings in Vega. In fact, several district courts

a), where an employee prevails after instituting a wage claim: within this Circuit have already analyzed this issue and all

have concurred that Konkur does not affect the core holding of

Vega. See Mabe v. Wal-Mart Assocs., Inc., 2022 WL 874311,

[T]he court shall allow such employee at *6 (holding “Konkur does not stand for the propositions

to recover the full amount of that the late payment of wages is not the underpayment of

any underpayment, all reasonable wages, or that the late payment of wages is not a wage claim

attorney's fees, prejudgment interest ... privately actionable under Section 198(1-a)”); Elhassa, 2022

and, unless the employer proves a WL 563264, at *2 (“Konkur [concerned] ... a private right

good faith basis to believe that of action for a different provision of the NYLL. Vega rested

its underpayment of wages was in on a different ground. Vega did not hold that a private right

compliance with the law, an additional of action was implied for the late payment of wages [but] ...

amount as liquidated damages equal that the NYLL expressly provides a private right of action for

to one hundred percent of the total the late payment of wages.” (internal citations and alterations

amount of the wages found to be due. omitted) (emphasis added)); Harris, 2022 WL 16941712, at

*5 (“[W]e cannot say that [Konkur] provides the level of

‘persuasive data’ ... [needed] to conclude that the Court of

NYLL § 198(1-a). Appeals would reject the result in Vega. Most importantly,

Vega held that the NYLL expressly provided for a private

In interpreting state law, a district court “is bound to apply right of action to enforce NYLL § 191(1)(a) in § 198(1-a),

the law as interpreted by a state's intermediate appellate which contemplates an action instituted in the courts upon a

courts unless there is persuasive evidence that the state's wage claim by an employee. Nothing in Konkur undermines

highest court would reach a different conclusion.” V.S. v. this statutory interpretation, because Konkur addresses an

Muhammad, 595 F.3d 426, 432 (2d Cir. 2010) (citing Pahuta implied cause of action.” (internal citations omitted)). This

v. Massey-Ferguson, Inc., 170 F.3d 125, 134 (2d Cir. 1999)). weight of authority persuades the Court that Konkur does not

preclude Plaintiffs’ claim.

Defendant argues that NYLL § 191 “does not afford a private

right of action for untimely paid full wages.” (Support Memo Similarly, the Court declines Defendant's invitation to “revisit

at 11.) In so arguing, Defendant concedes, and Plaintiffs its reliance on Vega” based upon its argument that any

acknowledge, that the First Department has already opined potential liquidated damages recovery based upon Plaintiffs’

on this issue and affirmatively held that, “[NYLL] § 198(1- “ ‘lost time value of money’ theory of injury ... impermissibly

a) expressly provides a private right of action for a violation invites this case to become mired in questions over whether

of [NYLL] § 191.” Vega v. CM and Assocs. Constr. Mgmt., such remedies comport with Due Process and the Eighth

LLC, 107 N.Y.S.3d 286, 288 (N.Y. App. Div. 1st Dep't 2019). Amendment's Excessive Fines Clause.” (Support Memo at

Further, the Vega court held that “the term underpayment,” 14.)

as used in § 198(1-a), “encompasses the instances where

an employer violates the frequency requirements of Section In Vega, in addition to holding that “Labor Law § 198(1-a)

191(1)(a) but pays all wages due before the commencement of expressly provides a private right of action for a violation

an action.” Id. As such, Vega forecloses the arguments raised of Labor Law § 191,” the First Department further held,

by the Defendant. Indeed, most district courts addressing the notwithstanding the fact that an employer may pay all

same issues presented here have ultimately followed Vega, wages due before the commencement of an action, that

“liquidated damages may be available under Labor Law §

including this Court.3 See Sorto v. Diversified Maint. Sys.,

198(1-a) to provide a remedy to workers complaining of

LLC, No. 20-CV-1302, 2020 WL 7693108, at *2 (E.D.N.Y.

untimely payment of wages, as well as nonpayment or partial

Dec. 28, 2020); Caul, 2021 WL 4407856 at *2-3 (collecting

payment of wages.” Vega, 175 A.D.3d at 288. In so holding,

cases); Gillett, 2022 WL 3285275 at *11 (collecting cases).

the First Department found persuasive Brooklyn Savings

Bank v. O'Neil, in which the Supreme Court held, in the

*5 Additionally, the Court is unconvinced by Defendant's

context of the Fair Labor Standards Act, “that, regardless of

commencement of the action, the statute provides a liquidated correct that liquidated damages equal to ‘the amount of

damages remedy for the ‘failure to pay the statutory minimum all late payments’ would violate the Due Process Clause,

on time.” Id. (quoting Brooklyn Sav. Bank v. O'Neil, 324 U.S. defendants have offered no reason why they would be entitled

697, 707 (1945)). to dismissal of plaintiff's claim—rather than a reduction in

damages.”). Thus, the Court declines Defendant's invitation.

Defendant invites the Court to revisit its reliance on Vega See Sorto, 2020 WL 7693108, at *3 (stating the Court

or, alternatively, to dismiss this case for lack of standing “sees no reason to depart from its analysis” that found Vega

to “avoid introducing [ ] grave Constitutional concerns into persuasive). To the extent not explicitly addressed, the Court

this case.” (Support Memo at 15.) Defendant argues that the has considered the remainder of Defendant's arguments on

Due Process Clause “precludes the imposition of statutory this point, and it finds them to be without merit.

penalties in amounts that are ‘wholly disproportioned

to the’ harm claimed by a plaintiff,” and that “the C. The Court Need Not Compel Plaintiff Rosario to

Eighth Amendment's Excessive Fines Clause prohibits the Individually Arbitrate His Claim

imposition of statutory penalties bearing no reasonable *6 The Court need not compel Plaintiff Rosario to

‘relationship to the gravity of the offense that [the statute] individually arbitrate his claims given Rosario's subsequent

is designed to punish.’ ” (Id. at 14–15.) However, while May 4, 2022 notice that he is voluntarily dismissing his

Defendant may ultimately be correct that the “potential claims against Defendant without prejudice. (See Notice of

liquidated damages recovery [in this case] will astronomically Voluntary Dismissal, ECF No. 38). Consequently, this issue

exceed the actual claimed, ‘time value of money’ injuries is moot.

pleaded by the Plaintiffs,” (id. at 14), this argument is

premature at the dismissal stage. See Rodrigue v. Lowe's

Home Ctrs., LLC, No. 20-CV-1127, 2021 WL 3848268, at

*6 (E.D.N.Y. Aug. 27, 2021) (Holding that where “there has CONCLUSION

been no liquidated damages award, and there is no record

For the stated reasons, IT IS HEREBY ORDERED that

on which to assess whether an award would be excessive”

Defendant's Motion to Dismiss (ECF No. 29) is DENIED.

a challenge of this sort is “premature” at the motion to

dismiss stage). Moreover, even assuming Defendant is proven

correct that a potential liquidated damages award would be All Citations

disproportionate to the injury alleged by Plaintiffs, dismissal

is not the appropriate remedy; rather, a reduction in the Not Reported in Fed. Supp., 2022 WL 17553319

Footnotes

1 The Court's decision is filed in the Case Docket at ECF No. 24. Herein, when citing Rosario I, the Court uses

the Westlaw citation.

2 The facts are drawn from Plaintiff's SAC, (ECF No. 26), and are assumed to be true for purposes of this

Memorandum & Order.

3 To the extent Defendant raises Accosta v. Lorelei Events Group Inc., No. 17-CV-7804, 2022 WL 195514

(S.D.N.Y. Jan. 21, 2022), and Grant v. Global Aircraft Dispatch, No. 720074/2019, 2021 WL 6777500 (Sup.

Ct. N.Y. Apr. 20, 2021), as support for the proposition that Vega has not been “universally adopted or applied

by New York courts,” the Court notes that neither of these cases discuss Vega and, as such, the Court does

not find them persuasive. Accord Harris, 2022 WL 16941712 at *10; Rath v. Jo-Ann Stores, LLC., No. 21-

especially true considering the plethora of authority to the contrary.

End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.

2011 WL 3809920 1712, 90 L.Ed.2d 69 (1986), and preemptory challenges

Only the Westlaw citation is currently available. guaranteed by New York state law can not be challenged

United States District Court, by federal habeas corpus review; and (3) in-court statements

S.D. New York. challenged by Petitioner were not hearsay because they

were admitted to establish the witnesses state of mind, and

Shawn MACHICOTE, Petitioner, review of the Petitioner's Confrontation Clause claim is

v. barred because of procedural default during the state court

Robert E. ERCOLE, Superintendent, Respondent. proceedings. Petitioner filed untimely objections to Judge

Francis' Report, which the Court will nevertheless consider.

No. 06 Civ. 13320(DAB)(JCF).

| For the reasons set forth below, Judge Francis' Report is

Aug. 25, 2011. adopted in its entirety, and Petitioner's Petition for the writ of

habeas corpus is HEREBY DENIED.

ADOPTION OF REPORT AND RECOMMENDATION

DEBORAH A. BATTS, District Judge.

II. DISCUSSION1

A. Objections to the Report and Recommendation

I. BACKGROUND “Within fourteen days after being served with a copy

[of a Magistrate Judge's Report and Recommendation], a

*1 Now before the Court is pro se Petitioner Shawn party may serve and file specific written objections to the

Machicote's November 20, 2006 Petition for writ of habeas proposed findings and recommendations.” Fed.R.Civ.P. 72(b)

corpus pursuant to 28 U.S.C. § 2254 (the “Petition”), (2); accord 28 U.S.C. s 636(b)(1)(C). The court may adopt

challenging his conviction in New York State Supreme Court, those portions of the Report to which no timely objection has

New York County, for murder in the second degree. Petitioner been made, as long as there is no clear error on the face of the

alleges that: (1) his right to due process was violated by the record. Wilds v. United Parcel Serv., Inc., 262 F.Supp.2d 163,

admission into evidence of statements he made to detectives 169 (S.D.N.Y.2003). A district court must review de novo

while incarcerated in North Carolina on unrelated charges; “those portions of the report or specified proposed findings

(2) his rights to a fair trial, due process, and equal protection or recommendations to which objection is made.” 28 U.S.C.

were violated when the trial court overruled defense counsel's § 636(b)(1)(C).

preemptory challenges against prospective jurors; and (3) his

Sixth Amendment right to confront witnesses against him *2 “To the extent, however, that the party makes only

was violated by the introduction at trial of hearsay statements conclusory or general arguments, or simply reiterates the

from a witness. (Report at 1.) On December 8, 2006, the original arguments, the Court will review the Report strictly

Petition was referred to United States Magistrate Judge James for clear error.” Indymac Bank, F.S.B. v. Nat'l Settlement

C. Francis IV for a report and recommendation. Agency, Inc., 2008 WL 4810043, at *1 (S.D.N.Y. Nov.3,

2008); see also Ortiz v. Barkley, 558 F.Supp.2d 444, 451

Judge Francis' January 18, 2008, Report and (S.D.N.Y.2008) (“Reviewing courts should review a report

Recommendation (the “Report”) recommends that and recommendation for clear error where objections are

Petitioner's habeas corpus Petition be denied. (Report at 1.) merely perfunctory responses, argued in an attempt to engage

Specifically, Judge Francis recommends that the Petition the district court in a rehashing of the same arguments set

be denied because: (1) statements Petitioner made while forth in the original Petition.”) (citation and internal quotation

incarcerated in North Carolina were not made under coercion marks omitted). After conducting the appropriate levels of

beyond the mere fact of imprisonment, and the state court's review, the Court may accept, reject, or modify, in whole or in

decision to admit those statements was not contrary to, part, the findings or recommendations made by the Magistrate

and did not involve the unreasonable application of, clearly Judge. 28 U.S.C. § 636(b)(1)(C).

established federal law; (2) proper procedure was employed

by the state court in overruling defense counsel's preemptory

leniency and should be construed to raise the strongest law,” limits the law governing a habeas Petitioner's claims

arguments that they suggest.” Howell v. Port Chester Police “to the holdings, as opposed to the dicta, of [the Supreme]

Station, 2010 WL 930981, at *1 (S.D.N.Y. Mar.15, 2010) Court's decisions as of the time of the relevant state-court

(citation omitted). “Nonetheless, even a pro se party's decision.” Carey v. Musladin, 549 U.S. 70, 74, 127 S.Ct. 649,

objections to a Report and Recommendation must be specific 166 L.Ed.2d 482 (2006) (quoting Williams, 529 U.S. at 365);

and clearly aimed at particular findings in the magistrate's accord Hawkins v. Costello, 460 F.3d 238, 242 (2d Cir.2006).

proposal, such that no party be allowed a second bite

at the apple by simply relitigating a prior argument.” Id. *3 “The ‘unreasonable application’ standard is independent

(quoting Pinkney v. Progressive Home Health Servs., 2008 of the ‘contrary to’ standard ... [and] means more than

WL 2811816 (S.D.N.Y. July 21, 2008) (internal quotations simply an ‘erroneous' or ‘incorrect’ application” of federal

marks omitted)). law.” Henry v. Poole, 409 F.3d 48, 68 (2d Cir.2005) (citing

Williams, 529 U .S. at 410). A state court decision is based on

On April 29, 2008, Petitioner filed untimely objections2 an “unreasonable application” of Supreme Court precedent if

to Judge Francis' Report (the “Objections”). Reading it correctly identifies the governing legal rule, but applies it

Petitioner's letter in the most lenient manner possible. in an unreasonable manner to the facts of a particular case.

Petitioner objects to Judge Francis' rejection of Petitioner's See Williams, 529 U.S. at 413. The inquiry for a federal

Confrontation Clause claim on the grounds that ineffective habeas court is not whether the state court's application of the

assistance of counsel cures the procedural default in that governing law was erroneous or incorrect, but, rather, whether

claim. it was “objectively unreasonable.” Id. at 408–10; see also

Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir.2001) (“[A] federal

Petitioner did not object to Judge Francis' Report on Miranda habeas court is not empowered to grant the writ just because,

and Batson claims and, accordingly, the Court will review in its independent judgment, it would have decided the federal

these issues only for clear error. Indymac Bank, F.S.B., 2008 law question differently. The state court's application must

WL 4810043, at *1. Because Petitioner objected to Judge reflect some additional increment of incorrectness such that it

Francis' recommendation on the Confrontation Clause claim, may be said to be unreasonable.”).

the Court will review that claim de novo. 28 U.S.C. § 636(b)

(1)(C). Moreover, under the AEDPA, “a determination of a factual

issue made by a State court shall be presumed to be

correct. The [Petitioner] shall have the burden of rebutting

B. Legal Standard the presumption of correctness by clear and convincing

Under the Anti–Terrorism and Effective Death Penalty Act evidence.” 28 U.S.C. § 2254(e) (1); see also Parsad v.

(“AEDPA”), a federal court may grant habeas relief to a state Greiner, 37 F.3d 175, 181 (2d Cir.2003) (“This presumption of

prisoner only if a state court conviction “resulted in a decision correctness is particularly important when reviewing the trial

that was contrary to, or involved an unreasonable application court's assessment of witness credibility.”). A state court's

of, clearly established Federal law, as determined by the findings “will not be overturned on factual grounds unless

Supreme Court of the United States,” 28 U.S.C. § 2254(d) objectively unreasonable in light of the evidence presented in

(1), or if it “was based on an unreasonable determination of the state-court proceeding.” Miller–El v. Cockrell, 537 U.S.

the facts in light of the evidence presented in the State court 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).

proceeding.” Id. § 2254(d)(2).

A state court decision is “contrary to” clearly established C. Miranda Claim

federal law “if the state court arrives at a conclusion opposite Judge Francis found that statements Petitioner made while

to that reached by [the Supreme Court] on a question of law or incarcerated in North Carolina were not made under coercion

if the state court decides a case differently than [the Supreme beyond the mere fact of imprisonment, and the state court's

Court] has on a set of materially indistinguishable facts.” decision to admit those statements was not contrary to,

Williams v. Taylor, 529 U.S. 362, 412–13, 120 S.Ct. 1495, and did not involve the unreasonable application of, clearly

146 L.Ed.2d 389 (2000); accord Hoi Man Yung v. Walker, 468 established federal law. After reviewing Judge Francis'

F.3d 169, 176 (2d Cir.2006); Ernst J. v. Stone, 452 F.3d 186, findings for clear error on the face of the record, the Court

DENIED. Ms. Arthur's testimony failed to reference any constitutional

grounds for the objection. People v. Machicote, 23 A.D.3d

at 265, 804 N.Y.S.2d at 78 (“To the extent that defendant is

D. Batson Ruling and Peremptory Challenges Claim raising a constitutional claim, such claim is unpreserved and

Judge Francis found that proper procedure was employed by we decline to review it in the interest of justice.”).

the state court in overruling defense counsel's preemptory

challenges under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. Under New York's contemporaneous objection rule, an issue

1712, 90 L.Ed.2d 69 (1986), and that peremptory challenges is properly preserved for appellate review only if the party

are guaranteed by New York state law, not federal law, and raised an objection at trial. N.Y. C.P.L. § 470.05(2). Even

thus cannot be challenged under federal habeas corpus review. if there is an objection to the admission of testimony at

After reviewing Judge Francis' findings for clear error on trial, to preserve a constitutional claim grounded on the

the face of the record, the Court ADOPTS Judge Francis' Confrontation Clause, New York law demands that counsel

recommendation that the Petitioner's Petition for the writ of specify the constitutional dimension of the objection. E.g.,

habeas corpus on this claim be DENIED. People v. Quails, 55 N.Y.2d 733, 734, 431 N.E.2d 634, 635,

447 N.Y.S.2d 149, 150 (1981). “If a state appellate court

refuses to review the merits of a criminal defendant's claim of

E. Confrontation Clause Claim

constitutional error because of his failure to comply with ... a

1. Procedural Default * contemporaneous objection' rule, a federal court generally

*4 Judge Francis recommends that Petitioner's may not consider the merits of the constitutional claim on

Confrontation Clause claim be barred because of procedural habeas corpus review.” Peterson v. Scully, 896 F.2d 661, 663

default during the state court proceedings, and even if (2d Cir.1990); see also Wainwright v. Sykes, 433 U.S. 72, 82–

Petitioner's Confrontation Clause claim was not barred, it 86, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Garcia v. Lewis,

would fail on the merits. 188 F.3d 71, 78–79 (2d Cir.1999).

Petitioner contends that the admission of Stephanie Arthur's Here, Petitioner's trial counsel objected to Ms. Arthur's

testimony regarding out of court statements identifying testimony at trial, but counsel made no mention of Petitioner's

Petitioner as the shooter violated his Sixth Amendment right right to confront witnesses, or any constitutional grounds for

to confront witnesses against him.3 The Respondent argues his objection. Counsel's primary reason for objecting was only

that Ms. Arthur could not independently identify Petitioner as

that this claim is procedurally defaulted because the Petitioner

the shooter and that her entire testimony should be stricken on

did not clearly raise it as an objection, on constitutional

that basis. (Tr. at 431–36). Therefore, the Appellate Division's

grounds, during trial.

holding that any constitutional claim was not preserved for

review is not contrary to, or an unreasonable application of,

A procedural default generally bars a federal court from

clearly established federal law.

reviewing the merits of a habeas claim. Wainwright v. Sykes,

433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Federal

*5 A federal habeas court may not review a prisoner's

habeas review is prohibited if a state court rests its judgment

claim if that claim was procedurally defaulted in state court

on a state law ground that is “independent of the federal

“unless the prisoner can demonstrate cause for the default and

question and adequate to support the judgment.” Cotto v.

actual prejudice as a result of the alleged violation of federal

Hebert, 331 F.3d 217, 238 (2d Cir.2003) (quoting Coleman

law.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct.

v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115

2546, 115 L.Ed.2d 640 (1991). Excuse of procedural default

L.Ed.2d 640 (1991)). A state procedural bar qualifies as an

requires a showing that some external impediment actually

“ ‘independent and adequate’ state law ground where ‘the

prevented counsel from raising the claim. McCleskey v. Zant,

last state court rendering a judgment in the case clearly and

499 U.S. 467, 497, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991);

expressly states that its judgment rests on a state procedural

Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2639, 91

bar.’ “ Levine v. Commissioner of Correctional Services, 44

L.Ed.2d 397 (1986). A petitioner suffers actual prejudice if

F.3d 121, 126 (2d Cir.1995) (quoting Harris v. Reed, 489

the outcome of the case would likely have been different had

U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989)).

the alleged constitutional violation not occurred. See Reed v.

Trottie v. Mantello, No. 98 Civ. 5581, 1999 WL 187202, at *4 a motion to vacate judgment that Petitioner filed in state

(S.D.N.Y. April 6, 1999). court, alleging ineffective assistance of counsel. Ineffective

assistance of counsel can excuse procedural default at the state

If the petitioner is unable to meet the cause and prejudice level, but the ineffective assistance of counsel claim must first

standard, his claim may still be heard if he can show that be presented in state court. See Edwards v. Carpenter, 529

failure to consider the claim would result in a fundamental U.S. 446, 451–454, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000);

miscarriage of justice. Coleman, 501 U.S. at 750. However, DiSimone v. Phillips, 461 F.3d 181, 191 (2nd Cir.2006). At

only in an “extraordinary case, where a constitutional the time of his Report, Judge Francis noted that Petitioner's

violation has probably resulted in the conviction of one who ineffective assistance of counsel claim was procedurally

is actually innocent,” will “a federal habeas court grant the barred because Petitioner did not raise it during the state

writ even in the absence of a showing of cause for the court proceedings. (Report at 37.) In an effort to cure that

procedural default.” Murray, 477 U.S. at 496; accord Spence default, Petitioner filed a motion in state court to vacate his

v. Superintendent, Great Meadow Correctional Facility, 219 judgment on the grounds of ineffective assistance of counsel.

F.3d 162, 170 (2d Cir.2000). While Petitioner's state court motion to vacate may have cured

the procedural default in his ineffective assistance of counsel

Here, Petitioner has not shown that either the “cause and claim4, Petitioner raises this argument for the first time in

prejudice” or “fundamental miscarriage of justice” exceptions his Objections, despite the fact that in earlier filings Petitioner

apply. Petitioner cannot meet the cause and prejudice standard specifically denied any claim for ineffective assistance of

because Petitioner has proffered no compelling explanation counsel. (Opp'n to Respondent's Mem. Law at 2.)

for counsel's failure to make a constitutional objection to Ms.

Arthur's testimony during trial. Nor is this an “extraordinary The Court of Appeals for the Second Circuit has not decided

case” that has clearly “resulted in the conviction of one who whether a district court must consider a new legal argument

is actually innocent.” Murray, 477 U.S. at 496. Consequently, raised for the first time in objections to a magistrate judge's

Petitioner's Confrontation Clause claim is barred Report and Recommendation. One U.S. District Court in

Vermont, Wells Fargo Bank N.A. v. Sinnott, 2010 WL 297830,

at *2 (D.Vermont), adopts the 11th Circuit's approach to new

2. Petitioner's Hearsay Claim Fails on the Merits

legal arguments, as described in Williams v. McNeil, 557 F.3d

Even if the Petitioner's hearsay objection was sufficient to

1287, 1291 (11th Cir.2009) (holding that in order to preserve

raise a Confrontation Clause claim, the claim would also

the efficiencies afforded by the Magistrates Act, a district

fail on the merits. “It has long been the rule that ‘[s]o long

court has discretion to decline to consider a party's argument

as ... statements are not presented for the truth of the matter

when that argument was not first presented to the magistrate

asserted, but only to establish a context ... the defendant's

Sixth Amendment rights are not transgressed.’ “ United States

judge.).5

v. Paulino, 445 F.3d 211, 216 (2d Cir.2006) (quoting United

States v. Barone, 913 F.2d 46, 49 (2d Cir.1990)); see also Applying this standard here, the Court finds that it does

Rolland v. Greiner, No. 02 Civ. 8403, 2006 WL 779501, not need to address Petitioner's new legal argument because:

at *3 (S.D.N.Y. March 27, 2006) (no Confrontation Clause (1) Petitioner did not make an ineffective assistance of

violation when court admitted testimony of police detectives counsel argument before Judge Francis when he had the

about a non-testifying co-defendant's statements inculpating opportunity to do so; (2) the record indicates that Petitioner

Petitioner for the purpose of explaining what led detectives was satisfied with counsel; (3) Petitioner only attempted to

to interview defendant five years after crime). Since Ms. bring an ineffective assistance of counsel claim after it was

Arthur's statements were admitted only to show her state of suggested in Judge Francis' Report as a possible cure to cure

mind and to establish a context for her identification of the his Confrontation Clause claim's procedural default; (4) the

Petitioner, there was no violation of the Petitioner's Sixth Court is unaware of any intervening case or statute that has

Amendment rights. changed the state of the law regarding procedural default or

ineffective assistance of counsel claims; (5) the resolution

of the new legal issue raised here is not open to a serious

F. Newly Presented Ineffective Assistance of Counsel Claim question of law; and (6) efficiency and fairness lean strongly

the Magistrates Act and would unfairly benefit Petitioner who merits because the challenged statements by Ms. Arthur were

changed his tactics after issuance of the magistrate judge's not hearsay. See supra.

Report and Recommendation. See Paterson–Leitch Co. v.

Thus, the Court declines to consider Petitioner's ineffective

Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 990–91 (1st

assistance of counsel claim raised for the first time in

Cir.1988) (“an unsuccessful party is not entitled as of right to

Petitioner's Objections to Judge Francis' Report.

de novo review by the judge of an argument never seasonably

raised before the magistrate.”)

*7 Finally, no manifest injustice will result by the Court III. Conclusion

declining to consider Petitioner's new argument. To prevail

on an ineffective assistance of trial counsel claim, Petitioner Having reviewed the January 18, 2008, Report and

must show: (1) that counsel's performance was deficient; and Recommendation of Magistrate Judge James C. Francis IV

(2) actual prejudice to the defense. Strickland v. Washington, for clear error on the first two claims, and de novo on the

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). third claim, the Court HEREBY APPROVES, ADOPTS, and

Petitioner would need to show that trial counsel's conduct fell RATIFIES the Report in its entirety, and Petitioner's Petition

“outside the range of professionally competent assistance” for the writ of habeas corpus is DENIED. The Clerk of the

and that “there is a reasonable probability that, but for Court is directed to close the docket in this case.

counsel's unprofessional errors, the result of the proceeding

would have been different.” Id. at 694. Petitioner's state SO ORDERED.

court motion to vacate judgment for ineffective assistance of

counsel was denied, and it would be denied here as well. The

All Citations

record shows zealous representation of Petitioner by counsel

at trial, and there is no indication that counsel's failure to Not Reported in F.Supp.2d, 2011 WL 3809920

object to Ms. Arthur's testimony on constitutional grounds

Footnotes

1 The Factual Background is set forth in detail in Judge Francis' Report and will not be reiterated here. (Report

at 2–15.)

2 After being granted several extensions, Petitioner filed his Objections one day late, on April 29, 2008. Attached

to his Objections was a copy of Petitioner's motion to vacate judgment pursuant to New York State C.P.L.

§ 440.1 that Petitioner filed in New York State Supreme Court. Petitioner requested a delay in ruling on the

Report so that the state court could rule on his motion to vacate. On December 8, 2009, Petititioner wrote

the Court asking of the status of his habeas petition. On January 16, 2009, the Supreme Court of the State

of New York, New York County, denied Petitioner's motion under § 440.1 and there is no record of Petitioner

appealing this decision.

3 Ms. Arthur was one of two witnesses that witnessed the shooting, but did not inform the authorities of what

she saw until several months later. During trial, Ms. Arthur testified that she “didn't see him [Mr. Machicote]

shoot the guy, but after a while, after I heard that it was the guy Shawn in the rap video, I put two and two

together.” (Tr.(2) at 431.) Defense counsel objected to the testimony of Ms. Arthur because she was “not

testifying from her recollection,” but instead from what she had heard from others. (Tr.(2) at 431–32.) The

court refused to strike Ms. Arthur's testimony on this point, but instructed the jury that what Ms. Arthur heard

Petitioner's counsel moved for a mistrial, but the trial judge denied the motion. (Tr.(2) at 437.)

4 On June 30, 2008, Petitioner's state court motion to vacate judgment for ineffective assistance of counsel

was denied because “defense counsel's representation, in the Court's view, was of a far higher level of

effectiveness and competence than the minimal constitutional standard.” People v. Machicote, No. 11169–

94, denial of motion to vacate at 8 (N.Y.Sup.Ct.N.Y.Cnty.Crim.Term, Jan. 16, 2009). This Court can find no

record of an appeal of the decision denying Petitioners motion to vacate.

5 The District Court of Vermont laid out a six factor test for determining if any new arguments should be allowed.

Wells Fargo, 2010 WL 297830, at *3: “(1) the reason for the litigant's previous failure to raise the new legal

argument; (2) whether an intervening case or statute has changed the state of the law; (3) whether the new

issue is a pure issue of law for which no additional fact-finding is required; (4) whether the resolution of the

new legal issue is not open to serious question; (5) whether efficiency and fairness militate in favor or against

consideration of the new argument; and (6) whether manifest injustice will result if the new argument is not

considered.”

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