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United Central Bank, Successor By Acquisition To Mutual Bank v. Shree Ganesh Properties

April 19, 2013

UNITED CENTRAL BANK, SUCCESSOR BY ACQUISITION TO MUTUAL BANK, PLAINTIFF,
v.
SHREE GANESH PROPERTIES, LLC,
DEFENDANT.



The opinion of the court was delivered by: Briccetti, J:

MEMORANDUM DECISION

Pending before the Court is a Report and Recommendation ("Report") from Magistrate Judge Paul E. Davison, dated March 4, 2013, computing damages after the Court granted summary judgment for plaintiff on its mortgage foreclosure claim. (Doc. #38). In the Report, Judge Davison recommended awarding judgment for plaintiff in the amount of $11,933,020.84, plus per diem interest accrued from February 13, 2013, until the date of entry of judgment.

For the following reasons, the Court adopts the Report as the opinion of the Court, except as to legal fees.

DISCUSSION

Familiarity with the factual and procedural background of this case is presumed.

I. Standard of Review

A district court reviewing a magistrate judge's recommended ruling "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge."

28 U.S.C. § 636(b)(1)(C). Parties may raise objections to the recommended ruling, but they must be "specific" and "written," and submitted "[w]ithin 14 days after being served with a copy of the recommended disposition." Fed. R. Civ. P. 72(b)(2); see also 28 U.S.C. § 636(b)(1)(C). When a party submits a timely objection to a report and recommendation, the district court reviews the parts of the report and recommendation to which the party objected under a de novo standard of review. 28 U.S.C. § 636(b)(1)(C). The district court may adopt those portions of the recommended ruling to which no timely objections have been made, provided no clear error is apparent from the face of the record. See Wilds v. UPS, Inc., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003). The clearly erroneous standard also applies when a party makes only conclusory or general objections, or simply reiterates his original arguments. Ortiz v. Barkley, 558 F. Supp. 2d 444, 451 (S.D.N.Y. 2008).

II. Appraisal Expenses

Plaintiff requested $29,500 in appraisal fees, but, in the Report, Judge Davison recommended reducing the award to $27,500 because plaintiff had failed to submit documentary evidence to corroborate a $2,000 payment on October 13, 2011. Plaintiff objects to this reduced amount, arguing it had submitted to Judge Davison its complete records, including an invoice for $2,000, dated May 26, 2010.

Reviewing that portion of the Report de novo, see 28 U.S.C. § 636(b)(1)(C), the objection is without merit. Judge Davison included the May 26, 2010, invoice in reaching the recommended $27,500-he did not include a purported $2,000 payment made on October 13, 2011. Judge Davison was correct not to include the purported October 13 payment because the only evidence plaintiff provided of it-despite a request by Judge Davison for supplemental documentation-was an internally generated spreadsheet attached to a declaration from James Toscano, vice president of plaintiff. (See Docs. #36, 37). And neither the declaration nor the spreadsheet provided sufficient detail to "establish damages with reasonable certainty." Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997); see, e.g., Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989) ("[T]he court may rely on detailed affidavits or documentary evidence . . . to evaluate the proposed sum." (Emphasis added)). Compare also Action S.A. v. Marc Rich & Co., 951 F.2d 504, 508 (2d Cir. 1991) (accepting amount when district judge was "inundated with affidavits, evidence, and oral presentations") with Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 54 (2d Cir. 1993) (disfavoring computation based on a single affidavit submit by an unopposed plaintiff).

Moreover, upon the Court's independent review of plaintiff's documents submitted in support of its request for appraisal fees, the Court finds plaintiff is entitled to $27,500, based on the following payments: $9,000 (invoice dated May 11, 2010), $2,000 (invoice dated May 26, 2010), $8,000 (invoice dated October 3, 2011), $6,500 (invoice dated June 28, 2012), and $2,000 (invoice dated July 9, 2012). Like Judge Davison, the Court finds no evidence beyond the spreadsheet to corroborate a purported $2,000 payment on October 13, 2011, and finds no basis for awarding plaintiff more than $27,500 in appraisal fees.*fn1

III. Insurance Expense

Plaintiff requested reimbursement for $34,284.59 in insurance coverage purchased for defendant. Judge Davison recommended the Court not grant the request because plaintiff failed to provide invoices or other underlying documentation to corroborate the expense. Plaintiff objects, arguing Toscano's declaration and the accompanying spreadsheet, which lists "WNC Insurance" at ...


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