12-3126-cv

Zaretsky v. Maxi-Aids, Inc. 

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY

FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN

CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE

EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION

“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON

ANY PARTY NOT REPRESENTED BY COUNSEL. 

At a stated term of the United States Court of Appeals for the Second Circuit, held at the

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 

 16th day of July, two thousand thirteen.

PRESENT:

ROSEMARY S. POOLER,

RAYMOND J. LOHIER, JR.,

SUSAN L. CARNEY,

Circuit Judges.

_____________________________________

FEIGE ZARETSKY, AKA FEIGE BERLIN,

AARON BERLIN,

Plaintiffs-Appellants,

v. 12-3126-cv

MAXI-AIDS, INCORPORATED, ANGELA

GIGLIO, ELLIOT ZARETSKY, HAROLD

ZARETSKY, SHIRLEY ZARETSKY, LARRY

DIBLASI, LATONYA THOMPSON, PAMELA

STEIN, TERESA BUTLER, MICHAEL D.

SOLOMON, SOLOMON & HERRERA, PLLC,

IGLAR, HEAR-MORE, ABLE-VISION, SUSAN

RUBIN, DANIEL HERRERA, RICHARD

HAUSE, SAMUELSON, HAUSE &

SAMUELSON, LLP, ALISA J. EPSTEIN,

AMAZON.COM, INC., 

Defendants-Appellees,
M & H INCORPORATED, DAVID WACHOLDER, 

JOHN DOE, 1-9, JANE DOE, 1-9, EUROPEAN 

AMERICAN BANK, JP MORGAN CHASE BANK, 

N.A., RAOUL FELDER, RAOUL FELDER & 

PARTNERS, P.C., UNITED STATES 

DEPARTMENT OF TREASURY, NEW YORK 

STATE DEPARTMENT OF TAXATION, CAPITAL 

ONE BANK, N.A.,

Defendants.

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_____________________________________

Appearing for Appellants: Feige Zaretsky, pro se, Plainview, NY; Aaron

Berlin, pro se, Brooklyn, NY

Appearing for Appellees: Michael A. Miranda, Miranda Sambursky Slone

Sklarin Verveniotis LLP, Mineola, NY, for

Maxi-Aids, Incorporated, Angela Giglio, Elliot

Zaretsky, Harold Zaretsky, Shirley Zaretsky, Larry

Diblasi, Latonya Thompson, Pamela Stein, Teresa

Butler, Iglar, Hear-More, and Able-Vision

Philip C. Silverberg (Sanjit Shah, on the brief), 

Mound Cotton Wollan & Greengrass, New York,

NY, for Michael D. Solomon, Solomon & Herrera,

PLLC, Susan Rubin, and Daniel Herrera

Matthew R. Jaeger, L’Abbate, Balkan, Colavita &

Contini, L.L.P., Garden City, NY, for Richard

Hause, Samuelson, Hause & Samuelson, LLP, and

Alisa J. Epstein

Appeal from a judgment of the United States District Court for the Eastern District of

New York (Feuerstein, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED. 

1 The Clerk of the Court is directed to change the caption as set out above. 

2
Appellants Feige Zaretsky and Aaron Berlin, pro se, appeal from a final judgment

dismissing their amended complaint pursuant to Federal Rules of Civil Procedure 16(f), for

failure to comply with a court order, and 41(b), for failure to prosecute. Appellants alleged

violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §

1961 et seq., and various state laws. We assume the parties’ familiarity with the underlying

facts, the procedural history of the case, and the issues on appeal.

A party’s “failure to object timely to a magistrate’s report operates as a waiver of any

further judicial review of the magistrate’s decision” if the report “explicitly states that failure to

object to the report within [fourteen] days will preclude appellate review and specifically cites 28

U.S.C. § 636(b)(1) and [R]ules 72[] [and] 6(a) . . . of the Federal Rules of Civil Procedure.” 

Small v. Sec’y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989). Appellants failed to

object to the magistrate judge’s report and recommendation after receiving notice that they were

required to file objections and that a failure to do so would result in a waiver of their right to

appellate review. The magistrate judge duly cited 28 U.S.C. § 636(b)(1), Fed. R. Civ. P. 6(a),

and 72(b) in his report. See Small, 892 F.2d at 16. Accordingly, Appellants have waived their

right to appellate review.

However, because this waiver rule is non-jurisdictional, we, in our discretion, may

excuse a party’s failure to object “in the interests of justice.” Roldan v. Racette, 984 F.2d 85, 89

(2d Cir. 1993). Nevertheless, even if we were to excuse Appellants’ failure to object, we would

conclude that the district court acted within its discretion in adopting the magistrate judge’s

recommendation of dismissal. See Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302 (2d

Cir. 2009); see also United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir.

2004) (noting that this Court considers five factors when reviewing a dismissal for failure to

prosecute). 

After an independent review of the record and relevant case law, we conclude that the

district court did not abuse its discretion in dismissing Appellants’ complaint for failure to

prosecute and for failure to comply with a court order for substantially the reasons articulated by

the magistrate and district court judges in their decisions entered, respectively, October 13, 2011,

and June 18, 2012.

We have considered all of Appellants’ remaining arguments and find them to be without

merit. Accordingly, we AFFIRM the judgment of the district court. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk

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