United States District Court, E.D. New York
Plaintiff: Allison J. Schoenthal, Esq., Allison M. Funk,
Esq., Nicole E. Schiavo, Esq., Priya Swaminathan, Esq. Hogan
Lovells U.S. LLP, Steven Rosenfeld, Esq. Gross Polowy LLC
Defendants: Anthony and Mary Ellen Buono Michal Falkowski,
Esq. Paykin, Richland & Falkowski, P.C.
MEMORANDUM & ORDER
SEYBERT, U.S.D. JUDGE.
before the Court are (1) plaintiff CIT Bank, N.A.'s
(“Plaintiff”) motion for a judgement of
foreclosure and sale, (Pl.'s Mot., Docket Entry 57), and
(2) Magistrate Judge Arlene R. Lindsay's Report and
Recommendation (“R&R”) recommending that this
Court grant in part and deny in part Plaintiff's motion,
(R&R, Docket Entry 62). For the following reasons, the
Court ADOPTS Judge Lindsay's R&R in its entirety.
November 10, 2014, Plaintiff commenced this foreclosure
action against defendants Anthony Buono and Mary Ellen Buono
(together, the “Buonos”) and Capital One.
(See generally Compl., Docket Entry 1.) The
Complaint alleges that in November 2007, the Buonos obtained
a mortgage loan in the amount of $857, 500 to purchase the
property located at 21 Saints Orchard Road, Belle Terre, New
York 11777. (Compl. ¶¶ 1, 11.) The Buonos defaulted
on the mortgage loan in April 2014 and failed to cure or make
any payments. (Compl. ¶¶ 14-15.) Plaintiff is the
assignee and holder of the note and mortgage. (Compl.
¶¶ 2, 13.)
detailed in the Court's April 21, 2016 Electronic Order,
the undersigned held a hearing on April 15, 2016, at which
the Court granted Plaintiff's motion for summary judgment
against the Buonos. (Apr. 2016 Elec. Order.) Additionally,
the Court denied without prejudice Plaintiff's requests
for judgment in the amount of $936, 665.19 and the
appointment of a referee, but granted Plaintiff leave to file
a motion that contained support for its calculation of
damages. (Apr. 2016 Elec. Order.) Plaintiff filed its motion
on July 24, 2017, (Pl.'s Mot.), and attached a proposed
Judgment of Foreclosure and Sale reflecting Plaintiff's
desire to have the Court appoint Thomas J. Stock, Esq. as
Referee to effectuate sale of the property, (See
Proposed J., Rosenfeld Aff. Ex. J, Docket Entry 58-10, at 2).
The undersigned referred Plaintiff's motion to Judge
Lindsay for an R&R on October 13, 2017. (See
Referral Order, Docket Entry 60.)
February 8, 2018, Judge Lindsay issued her R&R.
(R&R.) Judge Lindsay recommended that the Court award
Plaintiff a Judgment of Foreclosure and Sale against the
Buonos under the supervision of a Referee to be selected by
the undersigned, but that the Court deny Plaintiff's
request for attorneys' fees and deny Plaintiff's
request for statutory costs pursuant to the New York Civil
Practice Law and Rules. (R&R at 4-5.) Therefore, Judge
Lindsay recommended that the Court enter a Judgment of
Foreclosure and Sale reflecting the following amounts:
Principal in the amount of
Interest through May 1, 2017 in the
Additional daily interest from May
2, 2017 through the date of entry of this Order in
the amount of
$173.85 per day
Additional charges and advances
incurred from March 1, 2014 to May 1, 2017 in the
Costs in the amount of
For a total of
$1, 091, 915.54, plus daily interest
of $173.85 per day from
May 2, 2017 through the date of entry of this Order
(R&R at 1, 3-4.)
reviewing an R&R, a district court “may accept,
reject, or modify, in whole or in part, the findings and
recommendations made by the magistrate judge.” 28
U.S.C. § 636(b)(1)(C). If no timely objections have been
made, the “court need only satisfy itself that there is
no clear error on the face of the record.” Urena v.
New York, 160 F.Supp.2d 606, 609-10 (S.D.N.Y. 2001)
(internal quotation marks and citation omitted).
were due within fourteen (14) days of service of the R&R.
The time for filing objections has expired, and no party has
objected. Accordingly, all objections are hereby deemed to
have been waived.
careful review and consideration, the Court finds Judge
Lindsay's R&R to be comprehensive, well-reasoned, and
free of clear error, ...