United States District Court, E.D. New York
MEMORANDUM & ORDER
NICHOLAS G. GARAUFIS, United States District Judge.
January 13, 2015, the United States of America (the
"Government") brought this action to enforce
federal tax liens encumbering Defendant Donald Calaman's
interest in certain real property. (See Compl. (Dkt.
1).) On March 15, 2016, the Government moved for a default
judgment against Defendant New York Department of Taxation
and Finance ("NYDTF") (the "Motion").
(See Mot. for Default J. (Dkt. 34).) The Motion requests that
a default judgment be entered in favor of the Government and
against NYDTF declaring (i) that the Government's federal
tax liens are superior to NYDTF's interest in the real
property located at 121 Marlborough Road, Brooklyn, New York
(the "Marlborough Road Property") and in the
proceeds of any sale of the Marlborough Road Property, and
(ii) that NYDTF's interest in the Marlborough Road
Property shall be extinguished upon the sale of the property.
(See Proposed Order (Dkt. 34-4).)
Order dated April 5, 2016, the court referred the Motion to
Magistrate Judge Peggy Kuo for a Report and Recommendation
("R&R") pursuant to 28 U.S.C. §
636(b)(1)(B) and Federal Rule of Civil Procedure 72(b)(1).
(Apr. 5, 2016, Order Referring Mots.) On November 16, 2016,
Judge Kuo issued an R&R recommending that the court deny
the Government's Motion without prejudice because service
on NYDTF was not timely or, if service is found to be proper
or its timeliness is cured, the court grant the Motion.
(R&R (Dkt. 43) at 2.)
party has objected to Judge Kuo's R&R, and the time
to do so has passed. See Fed.R.Civ.P. 72(b)(2). (See
also R&R at 16 ("Written objections to this
Report and Recommendation must be filed within 14 days of
service of this report.... Failure to file objections within
the specific time waives the right to appeal any order or
judgment entered based on this Report and
Recommendation....").) Therefore, the court reviews the
R&R for clear error. See Gesualdi v. Mack Excavation
& Trailer Serv., Inc., No. 09-CV-2502 (KAM) (JO),
2010 WL 985294, at *1 (E.D.N.Y. Mar. 15, 2010); La Torres
v. Walker, 216 F.Supp.2d 157, 159 (S.D.N.Y. 2000);
c£ 28 U.S.C. § 636(b)(1). Finding no clear error,
the court ADOPTS the R&R in part and, in light of the
fact that the Government has cured the service issues
identified in the R&R, GRANTS the Government's Motion
for Default Judgment against NYDTF. See Porter v.
Potter. 219 F.App'x 112 (2d Cir. 2007) (summary
Service on Defendant NYDTF
judgment can only be contemplated if the court has
jurisdiction over the defendant and the defendant has been
served with process properly." First Tennessee Bank
Nat. Ass'n v. Thause. No. 1 l-CV-2219 (NGG) (ALC),
2011 WL 4543869, at *2 (E.D.N.Y. Sept. 28, 2011). Judge Kuo
correctly found that
service on NYDTF [on January 22, 2016] was valid under CPLR
§ 307(2) in that the Summons was delivered to
a person designated by the NYDTF to receive service of
process. See CPLR § 307(2). However, such service was
made long after the May 13, 2015 cutoff date for service, and
the docket sheet reflects that [the Government] never
requested an extension of time to serve NYDTF.
(R&R at 10.) After Judge Kuo issued the R&R, the
Government conceded that service of process was not completed
until after the deadline and moved for an extension of time
to serve NYDTF nunc pro tunc. (See
Gov't's Mot. for Extension of Time (Dkt. 45).) Upon a
showing of good cause, this court granted the nunc pro
tunc extension. (Order (Dkt. 47).) Accordingly, the
court finds that the service of process issues identified in
the R&R have been cured, and NYDTF has been properly
served with the Summons and Complaint in this action.
Priority of the Government's Liens Against Donald Calaman
Over NYDTF's Interest in the Marlborough Road Property
and Extinguishment of NYDTF's Interest
concluded that the Government's untimely service was
cured through a nunc pro tunc extension,
the court next examines the substance of the Motion and
whether the factual allegations in the Complaint
"provide a proper basis for liability and relief."
See Rolls-Royce PLC v. Rolls-Royce USA,
Inc.. 688 F.Supp.2d 150, 153 (E.D.N.Y. 2010) (citing
Au Bon Pain Corp. v. Artect Inc., 653 F.2d
61, 65 (2d Cir. 1981)). Judge Kuo found that the
Government's federal tax liens against Donald Calaman are
superior to NYDTF's interest in the Marlborough Road
Property and recommended that any interest of NYDTF in the
Marlborough Road Property be deemed extinguished upon sale of
the property. (See R&R at 14-16.)
Finding no clear error, the court adopts this portion of the
R&R in full.
light of the fact that the Government has cured the service
issues identified in the R&R, the R&R is ADOPTED in
part and the Government's Motion for Default Judgment
against NYDTF (Dkt. 34) is GRANTED. NYDTF is hereby adjudged
to have no right, title, claim, or lien interest in the
Marlborough Road Property. The Clerk of Court is ...