“Where parties receive clear notice of the consequences, failure to timely object to a magistrate's report and recommendation operates as a waiver of further judicial review of the magistrate's decision.”
How later courts described this case
- “Where parties receive clear notice of the consequences, failure to timely object to a magistrate's report and recommendation operates as a waiver of further judicial review of the magistrate's decision.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MIAMI HOME, LLC,
MEMORANDUM AND ORDER
Plaintiff,
Case No. 22-CV-1607 (FB) (JRC)
-against-
SALMA AHMED, SHAH ALAM,
CRIMINAL COURT OF THE CITY OF
NEW YORK, CITY OF NEW YORK
DEPARTMENT OF TRANSPORTATION
PARKING VIOLATIONS BUREAU, CITY
OF NEW YORK ENVIRONMENTAL
CONTROL BOARD, and TRANSIT
ADJUDICATION BUREAU,
Defendants.
Appearances:
For the Plaintiff:
ALAN H. WEINREB
Margolin, Weinreb & Nierer, LLP
165 Eileen Way , Suite 101
Syosset, NY 11791
BLOCK, Senior District Judge:
Miami Home, LLC (“Plaintiff”) filed this diversity foreclosure action
against Defendants seeking damages and a judgment of foreclosure and sale on a
mortgage encumbering 33-52 59th Street, Woodside, New York 11377 in Queens
County (“The Property”). Upon Plaintiff’s application and in light of Defendants’
failure to appear in or otherwise defend this action, the Clerk of the Court entered
Defendants’ default on May 2, 2022. Plaintiff then moved for default.
On February 8, 2023, Magistrate Judge James R. Cho issued a Report and
Recommendation (“R&R”) recommending that Plaintiffs’ motion for a default
judgment be granted as to Defendant-Borrowers Salma Ahmed (“Ahmed”) and
Shah Alam (“Alam”) and denied as to the City Defendants, which include the
Criminal Court of the City of New York, City of New York Department of
Transportation Parking Violations Bureau, City of New York Environmental
Control Board, and Transit Adjudication Bureau. Magistrate Judge Cho found that
all service and procedural requirements had been satisfied and that the allegations
set forth in Plaintiffs’ Complaint stated valid claims sufficient for this Court to
enter a default judgment.
Accordingly, Magistrate Cho recommended awarding Plaintiffs the
following damages from Ahmed and Alam: $515,000 in unpaid principal, and
$43,492.02 in interest, accrued at a rate of 3.75 percent, from February 1, 2020
through May 3, 2022, additional interest of $52.91 per day until entry of judgment,
and post-judgment interest at the statutory rate. Magistrate Cho further
recommended the appointment of Susan Ellen Rizos, Esq., as referee to conduct
the sale of the Property under the terms set forth in the proposed Judgment of
Foreclosure and Sale. Finally, Magistrate Cho recommended denying Plaintiff’s
motion for a default judgment against City Defendants with prejudice.
Magistrate Cho’s R&R stated that failure to object within fourteen days of
the date of the R&R waives the right to appeal, precluding further review either by
this Court or the Court of Appeals. No objections were filed. If clear notice has
been given of the consequences of failing to object and there are no objections, the
Court may adopt the R&R without de novo review. See Smith v. Campbell, 782
F.3d 93, 102 (2d Cir. 2015) (“Where parties receive clear notice of the
consequences, failure to timely object to a magistrate's report and recommendation
operates as a waiver of further judicial review of the magistrate's decision.”)
(internal citations omitted). The Court will excuse the failure to object and conduct
de novo review if it appears that the Magistrate Judge may have committed plain
error. See Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162,
174 (2d Cir. 2000). No such error appears here.
Accordingly, the Court adopts the R&R without de novo review and directs
the Clerk to enter judgment in accordance with the R&R.
SO ORDERED.
_/S/ Frederic Block___________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
February 23, 2022