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concluding that for jurisdictional purposes, the fact that Surrogate's Court was no longer actively administering the case did not bar application of the probate exception
Summary of this case from McKie v. Estate of DickinsonOpinion
19-CV-6393(EK)(ST)
03-24-2021
HOWARD MITCHELL, Administrator of the Estate of Bernice Alder, Plaintiff, v. EUNICE MAUD BROWNIE, Defendant.
MEMORANDUM & ORDER :
The Court has received Magistrate Judge Steven L. Tiscione's Report and Recommendation (R&R) dated March 5, 2021. ECF No. 21. Judge Tiscione recommends that non-party U.S. Specialty Insurance Company's motion to stay this action be denied, Plaintiff's motion for default judgment against Eunice Maud Brownie be denied, and the case be dismissed for lack of subject matter jurisdiction pursuant to the probate exception to diversity jurisdiction. Neither party has filed objections and the time to do so has expired. Accordingly, the Court reviews the R&R for clear error on the face of the record. See Advisory Comm. Notes to Fed. R. Civ. P. 72(b); accord Gesualdi v. Mack Excavation & Trailer Serv., Inc., No. 09-CV-2502, 2010 WL 985294, at *1 (E.D.N.Y. Mar. 15, 2010). Having reviewed the record, the Court finds no clear error. The Court adopts the R&R in its entirety pursuant to 28 U.S.C. § 636(b)(1).
Therefore, the case is dismissed for lack of subject matter jurisdiction. U.S. Specialty Insurance Company's motion to stay the action is denied and Plaintiff's motion for default judgment is also denied. The Clerk of Court is respectfully directed to enter judgment and close the case.
SO ORDERED.
/s Eric Komitee
ERIC KOMITEE
United States District Judge Dated: March 24, 2021
Brooklyn, New York