The opinion
U.S. DISTRICT COURT
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK BROOKLYN OFFICE
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U.S. BANK NATIONAL ASSOCIATION, not in
its individual capacity but solely as Trustee for
the RMAC Trust, Series 2016-CTT,
Plaintiff,
-against- NOT FOR PUBLICATION
MEMORANDUM & ORDER
JAGERNAUTH S. M. HARILAL, NEW YORK 19-cv-7034 (CBA) (JRC)
CITY DEPARTMENT OF HOUSING
PRESERVATION AND DEVELOPMENT,
NEW YORK CITY HOUSING
DEVELOPMENT CORPORATION, and NEW
YORK CITY ENVIRONMENTAL CONTROL
BOARD,
Defendants.
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AMON, United States District Judge:
On December 16, 2019, Plaintiff U.S. Bank National Association (“U.S. Bank” or
Plaintiff’) brought this foreclosure action against Jagernauth S. M. Harilal (“Harilal”), New York
City Department of Housing Preservation and Development (“HPD”), New York City Housing
Development Corporation (“HDC”), and New York City Environmental Control Board (“ECB”)
(collectively with HPD and HDC the “City Defendants”, and with HPD, HDC, and Harilal the
“Defendants”), pursuant to New York’s Real Property Actions and Proceedings Law (“RPAPL”),
Article 13. (See ECF Docket Entry (“D.E.”) # 1 (“Compl.”) 41.) U.S. Bank seeks damages, costs,
and a judgment of foreclosure and sale for the property located at 1097 Glenmore Avenue,
Brooklyn, New York, 11208 (the “Property”), on which it holds a mortgage. (Id. at Wherefore
Clause; see also D.E. # 26-11 (Default Judgment of Foreclosure and Sale (Proposed)); D.E. # 25
Mem. in Supp. of Mot. for Default J.).
Upon U.S. Bank’s application and in light of Defendant Harilal’s failure to appear in or
otherwise defend this action, the Clerk of the Court entered Harilal’s default on February 25, 2020!.
(D.E. # 14.) On October 8, 2021, U.S. Bank moved for entry of default judgment, (D.E. # 24),
and | referred the motion to the Honorable James R. Cho, United States Magistrate Judge, for
report and recommendation (“R&R”), (see Text Order dated Oct. 8, 2021). On December 2, 2021,
Magistrate Judge Cho ordered the City Defendants, who hold liens on the Property that are
subordinate to U.S. Bank’s mortgage, to respond to U.S. Bank’s motion by December 16, 2021.
(See Text Order dated Dec. 2, 2021.) All City Defendants responded by the deadline and did not
object to U.S. Bank’s motion, but did stipulate to their subordinate interests in the property
(assuming the Court determined U.S. Bank’s mortgage to be valid) and their rightful claim to any
surplus monies that might result from the foreclosure sale. (See D.E. #31 (HPD & HDC Ltr.)
(stating “the HPD and HDC mortgages are next in priority after the mortgage foreclosed herein by
Plaintiff and the [HPD and HDC] liens would be a lien upon any surplus monies that results from
the foreclosure sale of the [Property]”); D.E. #32 (ECB Ltr.) (“Ifa surplus is determined to remain
after the mortgage foreclosure by Plaintiff and [the HPD and HDC] superior liens are satisfied|[, ]
[the Department of] Finance for ECB will seek its portion of the surplus.”).)
On August 30, 2022, Magistrate Judge Cho issued an R&R recommending that the motion
for default judgment be granted as to Defendant Harilal, but denied without prejudice as to the
City Defendants. (D.E. #33 (“R&R”).) Specifically, Magistrate Judge Cho recommended entry
of final judgment against Harilal awarding damages in an amount largely consistent with those
requested by U.S. Bank, in addition to recommending the appointment of Gregory Cerchione as
' The Clerk also noted City Defendant ECB’s default, but attorneys for ECB appeared following a stay of this case
during the COVID-19 foreclosure moratorium, (see D.E. # 22), and filed a letter in response to the present motion for
default judgment, (see D.E. # 32).
referee to conduct the sale of the Property under the terms set forth in the proposed Judgment of
Foreclosure and Sale. (See R&R 19 (citing D.E. # 26-11).) Magistrate Judge Cho recommended
denying default judgment against the City Defendants in light of “plaintiff's failure to brief default
judgment against the City defendants, ECB’s appearance in this action by counsel and letter in
response to the default motion, and plaintiff's failure to secure a Certificate of Default against HPD
or HDC.” (R&R 12.) In denying the motion as to the City Defendants, Magistrate Judge Cho
stressed that U.S. Bank’s rights with respect to Harilal and the City Defendants will not be
impacted by such a denial, and the denial will simply ensure that the foreclosure and sale will not
extinguish the City Defendants’ rights in the Property. (Id. (citing Gustavia Home, LLC v.
Lawrence, No. 16-cv-4010 (SJ) (SMG), 2017 WL 4404434, at *4 (E.D.N.Y. June 22, 2017)
(“[D]Jenying plaintiff's motion for default judgments against the ECB and PVB will not defeat
plaintiff's rights with respect to .. . the mortgagor defendant; rather, the failure to obtain default
judgments against ECB and PVB ‘simply leaves [their] rights unaffected by the judgment of
foreclosure and sale.””) (quoting Glass v. Estate of Gold, 853 N.Y.S.2d 159, 160 (2d Dep’t 2008)
(alteration in original)), report and recommendation adopted, 2017 WL 4402448 (E.D.N.Y. Oct.
2,2017)),)
No party has objected to the R&R, and the time for doing so has passed. When deciding
whether to adopt an R&R, a district court “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). To accept
those portions of the report and recommendation to which no timely objection has been made, “a
district court need only satisfy itself that there is no clear error on the face of the record.” Jarvis
y. N. Am. Globex Fund, L.P., 823 F. Supp. 2d 161, 163 (E.D.N.Y. 2011) (quoting Wilds v. United
Parcel Serv., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003)). I have reviewed the record, and finding
no clear error, I adopt the R&R.
Accordingly, I grant Plaintiff's default judgment against Harilal and order entry of a final
judgment against Harilal awarding damages as follows: i) $309,183.83 in unpaid interest-bearing
principal and $408.26 in unpaid non-interest-bearing principal; ii) $32,148 in interest, accrued at
an annual rate of 4.25% from May 1, 2019 through October 10, 2021, additional interest of $36
per day from October 11, 2021 until entry of judgment, and post-judgment interest at the statutory
rate calculated based on the weekly average one-year constant maturity Treasury yield for the week
preceding the date on which judgment is entered; iii) $23,501.82 in late charges, hazard insurance
disbursements, tax disbursements, and property inspections/preservation disbursements; and iv)
$1,146.56 in costs. I further order the appointment of Gregory Cerchione as referee to conduct the
sale of the Property under the terms set forth in the proposed Judgment of Foreclosure and Sale,
(D.E. # 26-11). Finally, I deny without prejudice Plaintiffs request for default judgment against
the City Defendants. The Clerk of the Court is ordered to enter judgment in line with the foregoing.
SO ORDERED.
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Dated: September 30, 2022 s/Carol Bagley Amon
Brooklyn, New York eae □□
Carol Bagley"ameh
United States District Judge