Opinion
02 Civ. 8008 (RMB) (AJP)
October 29, 2002
REPORT AND RECOMMENDATION
To the Honorable Richard M. Berman, United States District Judge:
Plaintiff Donna Fioravante, represented by counsel, seeks review of a decision by the Commissioner of Social Security, denying plaintiff's claim for disability benefits. (Dkt. No. 1: Compl. ¶ 3.) Unfortunately, plaintiff's counsel appears to be geographically challenged about the location of New York's often-forgotten borough, Staten Island.
The complaint alleges that "Plaintiff is a citizen of the city [sic] of Staten Island and State of New York, County of Richmond, within the Southern [sic] District of New York. . . ." (Compl. ¶ 1.) The borough of Staten Island is within the United States District Court for the Eastern District of New York, not the Southern District.
Appeals from decisions of the Social Security Administration are to be brought in the District where plaintiff resides. 42 U.S.C. § 405(g). Accordingly, for the convenience of parties and the interest of justice, this action should be transferred to the United States District Court for the Eastern District of New York, based on plaintiff's residence in that District. See Vaz v. Commissioner of Social Security, 01 Civ. 8588, 2001 U.S. Dist. LEXIS at *1 (S.D.N.Y. Oct. 17, 2001) (Peck, M.J.) (action transferred to Eastern District of New York because plaintiff resided in Brooklyn); Pilgrim v. Commissioner of Social Security, 01 Civ. 7371, 2001 WL 1222213 at *1 (S.D.N.Y. Oct. 12, 2001) (Peck, M.J.) (same); Bercovici v. Sullivan, 92 Civ. 7339, 1993 WL 106376 at *1 (S.D.N.Y. Apr. 7, 1993) (Under § 405(g), where "complaint was not filed in the judicial district in which [plaintiff] resides, this Court lacks subject matter jurisdiction to review it[.]"), motion to vacate denied, 1993 WL 362369 at *2 (S.D.N.Y. Sept. 21, 1993); Korenchuk v. Sullivan, No. 5:92CV00453, 1993 WL 90342 at *4 (D.Conn. Jan. 13, 1993) (Because plaintiff resided in New York City, court found venue improper in the District of Connecticut and transferred the action to the Southern District of New York.).
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Richard M. Berman, 40 Centre Street, Room 201, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Berman. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).