Antolini v. 110 Thompson St Owners Corp

Background

Dino Antolini alleged that Lynne Kanter and 110 Thompson St. Owners Corp., referred to as the Landlord Defendants, and Sebastian Pourrat and Soseb LLC, referred to as the Tenant Defendants, violated the Americans with Disabilities Act, the New York State Human Rights Law, and the New York City Human Rights Law. He also asserted negligence claims. The allegations concerned physical barriers to access at Cocotte, a now-defunct restaurant owned and operated by the Tenant Defendants in a building owned by the Landlord Defendants.

Soseb LLC filed a third-party complaint against Perry Thompson Third, LLC asserting breach of contract, indemnification, and contribution claims. Perry Thompson Third, LLC later asserted counterclaims against Soseb LLC for indemnity and defense costs.

Earlier Proceedings

The defendants moved to dismiss. In a September 2020 report and recommendation, Magistrate Judge Lehrburger recommended granting the motion as to the Tenant Defendants and denying it as to the Landlord Defendants. Judge Gardephe adopted that recommendation in July 2023.

In November 2023, Judge Lehrburger ordered the parties to file a joint status letter. Antolini did not respond. The defendants reported that Antolini's attorney, Stuart H. Finkelstein, had been charged with filing fraudulent disability lawsuits on behalf of people who allegedly had not authorized the suits or visited the establishments involved. The defendants also reported that Finkelstein had pleaded guilty to mail fraud and that Antolini's identity had not been verified. The opinion states that the defendants said it was possible Antolini was another of Finkelstein's victims or might not exist; it does not make an independent finding on those reports.

Judge Lehrburger then ordered Antolini to appear at a January 11, 2024 hearing and explain why the action should not be dismissed with prejudice. The order stated that failure to appear alone would support dismissal. Antolini did not appear. Judge Lehrburger issued a report and recommendation on January 22, 2024, recommending dismissal of the complaint with prejudice for failure to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure. The recommendation also called for dismissal of the defendants' crossclaims and Soseb LLC's third-party claims against Perry Thompson Third, LLC as moot.

Review of the Recommendation

No party filed objections within the required 14-day period. The court explained that failing to object after receiving clear notice generally waives judicial review. Because that rule is not jurisdictional, however, the court reviewed the record for clear error—the obvious mistake standard used when no timely objection is filed.

Ruling

Judge Paul G. Gardephe found the report and recommendation thorough, well-reasoned, and free of clear error. He adopted it in its entirety. The complaint was dismissed under Rule 41(b) for failure to prosecute. The defendants' crossclaims and Soseb LLC's third-party claims were dismissed as moot. The Clerk of Court was directed to close the case.