Opinion

Gustavia Home, LLC v. Krupnikova

Court
District Court, E.D. New York
Filed
Sep 4, 2019
Cited by
0 cases
Authority
More cited than 26.5%

The opinion

FILED

IN CLERK'S OFFICE

UNITED STATES DISTRICT COURT us oistRicr colwrmeee

EASTERN DISTRICT OF NEW YORK □ SEP 03 209 *

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Plaintiff,

ORDER

-against-

16-CV-2104 (NGG) (RER)

THE BOARD OF MANAGERS OF OCEANA

CONDOMINIUM NO. TWO

Defendants.

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NICHOLAS G. GARAUFIS, United States District Judge.

Plaintiff Gustavia Home, LLC brings this diversity action against Defendant The Board

of Managers of Oceana Condominium No. Two (the “Board”) to foreclose upon a residential

mortgage pursuant to New York Real Property and Proceedings Law, Section 1301 et seq.

(Compl. (Dkt. 1).) Upon Plaintiff's application and in light of the Board’s failure to appear in or

otherwise defend this action, the Clerk of Court entered the Board’s default on July 25, 2016.

(Entry of Default (Dkt. 12).) Currently pending before the court is Plaintiff's motion for default

judgment. (Pl. Mot. for Default J. (“Mot.”) (Dkt. 37).) The undersigned referred Plaintiff's

motion to Magistrate Judge Ramon E. Reyes, who issued a report and recommendation (“R&R”)

that the court grant the motion. (R&R (Dkt. 39) at 1.)

This case arises out of a $280,000 loan taken out by Irina Krupnikova, secured by a

residential mortgage on her residence, located at 120 Oceana Drive West, Apt. 51, Brooklyn,

New York (the “Property”). (Compl. ff 3, 9; see also Credit Line Mortgage (the “Mortgage”)

(Dkt. 1-1 at ECF pp. 4-11); Equity Reserve Agreement (the “Note”) (Dkt. 1-1 at ECF pp. 12-

21).) Through a series of assignments, Plaintiff acquired both the Note and the Mortgage.

(Compl. ff 11-13; Note at ECF pp. 19-21.) The Board holds an undisclosed lien or judgment on

the Property that is subordinate to the Mortgage. (Id. §] 4, 6.) On December 5, 2018, the court

granted Plaintiff's motion for summary judgment against Krupnikova (who was named as a

defendant in this action) after determining that there was no genuine dispute of material fact as to

whether she had defaulted under the Note. (See Mem & Order (Dkt. 36) at 6-10.) Accordingly,

Plaintiff now moves for a judgment of foreclosure and sale. (See Mot. at ECF p. 6.)

Judge Reyes applied New York law and found that Plaintiff had successfully established

the Board’s status as a junior interest-holder and, accordingly, a necessary party to this

proceeding. (R&R at 2.) Judge Reyes further found that Plaintiff's submission of the Mortgage

(Dkt. 1-1 at ECF pp. 4-11) and the Note (Id. at ECF pp. 12-21), coupled with this court’s finding

that Krupnikova had defaulted, established Plaintiff's entitlement to a judgment of foreclosure

and sale as a matter of law. (R&R at 2-3.) Judge Reyes recommended that the court appoint

Plaintiff's designee, Susan E. Rizos, Esq., as referee to conduct the contemplated sale of the

Property. (Id. at 3.)

In order to calculate damages, Judge Reyes examined the Mortgage, the Note, and the

affidavit of Jared Dotoli (Dkt. 37-2). He then recommended that Plaintiff be awarded

$379,902.10 together with pre-judgment interest at a rate of $26.83 per diem from December 18,

2018 until the date on which judgment is entered, against which he recommended the proceeds

from the sale of the Property be applied. (R&R at 3-4.) Judge Reyes denied as premature

Plaintiff's request to have the referee’s fees and other ancillary costs of the sale applied against

the sale proceeds, but recommended that Plaintiff be granted leave to file a detailed application

setting forth the costs actually incurred to sell the Property after the Property has been sold. (Id.

at 4.)

No party has objected to Judge Reyes’s R&R, and the time in which to do so has passed.

See Fed. R. of Civ. P. 72(b)(2). (See also R&R at 5.) 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).

The court finds no clear error, but declines to appoint Susan E. Rizos, Esq. as referee at

this time. Accordingly, the court ADOPTS the R&R as modified, and GRANTS Plaintiff's

motion for default judgment.

Plaintiff is awarded $379,902.10 together with pre-judgment interest at a rate of $26.83

per diem from December 18, 2018 until the date on which judgment is entered, against which the

proceeds of the sale of the property shall be applied. Following the sale of the Property, Plaintiff

may apply to have the referee’s fees and other ancillary costs applied against the sale proceeds.

Plaintiff is DIRECTED to file under seal Ms. Rizos’s resume, as well as the resumes of at

least two additional candidates to serve as referee in connection with the contemplated sale of the

Property. Plaintiff is further DIRECTED to file a Proposed Judgment and Order of Foreclosure

and Sale consistent with this order.

SO ORDERED.

s/Nicholas Garaufis

Dated: Brooklyn, New York NICHOLAS G. GARAUFIS \ |

September 3, 2019 United States District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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