Schulz et al v. State of New York et al, No. 1:2007cv00943 - Document 344 (N.D.N.Y 2009)

Court Description: DECISION AND ORDER granting in part and denying in part 338 Motion to Substitute Party. ORDERED That plaintiff's Motion to substitute James A. Walsh and Gregory P. Peterson as party-defendants for Defendants Kelleher and Donahue is GRANTED as to the claims against Kelleher and Donahue in their official capacities. IT IS ORDERED that Plaintiff's Motion to substitute James A. Walsh and Gregory P. Peterson as party-defendants for Defendants Kelleher and Donahue is DENIED without prejudi ce as to the claims against Kelleher and Donahue in their individual capacities; ORDERED that Defendants cross-motion 339 Motion for Extension of Time to Amend is GRANTED, such that defendants amended answer 343 adding the affirmative defense of q ualified is proper; ORDERED that the Report and Recommendations 342 is APPROVED and ADOPTED in its ENTIRETY. ORDERED that Plaintiff's action be terminated against the deceased defendant Kelleher in its entirety. Signed by Senior Judge Lawrence E. Kahn on 11/20/09. (ban)

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ROBERT L. SCHULZ and JOHN LIGGETT, Plaintiffs, -against- 1:07-CV-0943 (LEK/DRH) NEIL KELLEHER; DOUGLAS KELLNER, individually and as a Commissioner of the New York State Board of Elections; EVELYN AQUILA, individually and as a Commissioner of the New York State Board of Elections; and HELENA MOSES DONAHUE, individually and as a Commissioner of the New York State Board of Elections, Defendants. DECISION AND ORDER This matter comes before the Court following a Report-Recommendation filed on October 13, 2009, by the Honorable David. R. Homer, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and L.R. 72.3(c) of the Northern District of New York. Report-Rec. (Dkt. No. 342). Within ten days, excluding weekends and holidays, after a party has been served with a copy of a Magistrate Judge s Report-Recommendation, the party may serve and file specific, written objections to the proposed findings and recommendations, FED . R. CIV . P. 72(b), in compliance with L.R. 72.1. No objections have been raised in the allotted time with respect to Judge Homer s Report-Recommendation. Furthermore, after examining the record, the Court has determined that the Report-Recommendation is not subject to attack for plain error or manifest injustice. 1 Accordingly, it is hereby ORDERED, that the Report-Recommendation (Dkt. No. 342) is APPROVED and ADOPTED in its ENTIRETY; and it is further ORDERED, that Plaintiffs Motion (Docket No. 338) to substitute James A. Walsh and Gregory P. Peterson as party-defendants for Defendants Kelleher and Donahue is GRANTED as to the claims against Kelleher and Donahue in their official capacities; and it is further ORDERED, that Plaintiffs Motion (Docket No. 338) to substitute James A. Walsh and Gregory P. Peterson as party-defendants for Defendants Kelleher and Donahue is DENIED without prejudice as to the claims against Kelleher and Donahue in their individual capacities; and it is further ORDERED, that Defendants cross-Motion (Docket No. 339) is GRANTED, such that defendants amended answer (Dkt. No. 343) adding the affirmative defense of qualified is proper; and it is further ORDERED, that Plaintiff s action be terminated against the deceased Defendant Kelleher in its entirety; and it is further ORDERED, that the Clerk serve a copy of this Order on all parties. IT IS SO ORDERED. DATED: November 20, 2009 Albany, New York 2

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