# Brown v. Amarante

> District Court, S.D. New York · March 27, 2025

URL: https://www.frixlaw.com/law-library/cases/10832983

## Case

- **Court:** District Court, S.D. New York
- **Decided:** March 27, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10832983

## How later opinions describe it (automated extraction)

- applying federal procedural law on the forfeiture of an affirmative defense supplied by state law

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
EDWARD BROWN
Plaintiff,
-against-
JOSE AMARANTE, LUIS DATIZ, THE NEW
YORK CITY TRANSIT AUTHORITY 23-CV-3514 (JGLC)
ADJUDICATION BUREAU and “JOHN
DOE” and “JANE DOE”, the last two names ORDER ADOPTING REPORT
being fictitious, said parties intended being AND RECOMMENDATION
tenants or occupants, if any, having or claiming
an interest in, or lien upon, the premises
described in the complaint,
Defendants.

JESSICA G. L. CLARKE, United States District Judge:
This case was referred to Magistrate Judge Lehrburger for general pretrial purposes and
all dispositive motions. See ECF No. 8. Plaintiff moved for an order (1) granting summary
judgment on his foreclosure claim against Defendants Jose Amarante and Luis Datiz; (2) striking
Defendants’ Answer and Counterclaims; and (3) granting default judgment against the non-
answering Defendants. ECF No. 28. On November 8, 2024, Judge Lehrburger issued a Report
and Recommendation recommending that summary judgment on Plaintiff’s foreclosure claim be
denied, that summary judgment be granted to Plaintiff on Defendants’ First through Third and
Fifth through Eleventh affirmative defenses and Defendants’ first counterclaim, but denied as to
Defendants’ Fourth and Twelfth affirmative defenses and second counterclaim for attorney’s
fees, and that default judgment be denied against the non-answering defendants. ECF No. 35
(“R&R”). On November 21, 2024, Plaintiff filed a timely Objection. ECF No. 36 (“Obj.”).
Defendants do not object, filing timely responses to Plaintiff’s Objection. ECF No. 38.
In reviewing a report and recommendation, 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). A district court “must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3); see also United States v.

Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). To accept those portions of the report to which no
timely objection has been made, however, a district court need only satisfy itself that there is no
clear error on the face of the record. See, e.g., Wilds v. United Parcel Serv., 262 F. Supp. 2d 163,
169 (S.D.N.Y. 2003). This clearly erroneous standard also applies when a party makes only
conclusory or general objections, or simply reiterates his original arguments. See, e.g., Ortiz v.
Barkley, 558 F. Supp. 2d 444, 451 (S.D.N.Y. 2008). Finally, “new arguments and factual
assertions cannot properly be raised for the first time in objections to the report and
recommendation, and indeed may not be deemed objections at all.” Piligian v. Icahn Sch. of
Med. at Mount Sinai, 490 F. Supp. 3d 707, 716 (S.D.N.Y 2020) (internal citation omitted).
The Court has reviewed the motion papers, the R&R, the Objection, and Defendants’

response, and finds the R&R to be well-reasoned and grounded in fact and law. Plaintiff’s
arguments in the Objection lack merit.
First, Plaintiff contends that he submitted sufficient evidence of default through the
attachment of the Demand Loan Payoff exhibit. Obj. at 5. Plaintiff argues that the R&R should
not have recommended ignoring the Demand Loan Payoff based on Plaintiff’s inadvertent
mistake referencing the document as the payoff statement of a 2021 Note. Id. at 5–6. Given
Plaintiff’s assertions in the Objection that the reference to a 2021 Note was indeed an inadvertent
typographical error, the Court is inclined to overlook the error and consider the Demand Loan
Payoff as evidence. But even so, the Demand Loan Payoff is insufficient evidence of default for

the other reasons stated in the R&R. See R&R at 14–18. Specifically, given the number of times
that the Note has changed owners through reassignments, as well as the temporal gaps of specific
recordkeeping evidenced by the first exhibit attached to Plaintiff’s affidavit, see ECF No. 28-12
at 7–69, the Court is not convinced that the Demand Loan Payoff is an accurate record of
payment history rather than a statement of what Plaintiff claims is owed. Indeed, while Plaintiff’s

affidavit calls the first exhibit with temporal gaps the “Payment History,” this same affidavit only
references the Demand Loan Payoff in the context of a paragraph detailing the total amount he
believes is due. Id. at ¶¶ 13, 15. With “questions regarding what the [Demand Loan Payoff]
show[s],” the Court cannot find summary judgment in favor of Plaintiff based on this document.
FTS Cap., LLC v. Stuyvesant Constr. Corp., No. 19-CV-7275 (TAM), 2024 WL 1014120, at *5
(E.D.N.Y. Mar. 8, 2024).
Second, Plaintiff argues that the R&R was in error to consider defenses that were raised
for the first time in Defendants’ opposition to Plaintiff’s motion for summary judgment. Obj. at
7–10. Plaintiff challenges the R&R’s reliance on federal law for waiver of defenses and urges the
Court to instead adopt the rule of New York law as stated in U.S. Bank National Association v.

Nelson, 169 A.D.3d 110 (2d Dep’t N.Y. 2019), aff’d, 163 N.E.3d 49 (N.Y. 2020). Obj. at 7–10.
To the contrary, federal law governs when an affirmative defense is waived in a federal court
proceeding. See Fed. R. Civ. P. 8(c); see, e.g., Legal Aid Soc’y v. City of New York, 114 F. Supp.
2d 204, 222 (S.D.N.Y. 2000) (applying federal procedural law on the forfeiture of an affirmative
defense supplied by state law); Santos v. Dist. Council of N.Y.C. & Vicinity of United Bhd. of
Carpenters & Joiners of Am., AFL-CIO, 619 F.2d 963, 967 (2d Cir. 1980) (directing district
courts to follow federal procedural rules when determining whether untimely assertions of state-
law-based affirmative defenses were waived).
But even applying state law waiver rules under Nelson, the outcome would be the same.

That is because Nelson only requires that “where the answering party wishes to interpose new
matter in defense to the cause of action that goes beyond the essential elements of the cause of
action . . . the party must plead, as an affirmative defense, ‘all matters which if not pleaded
would be likely to take the adverse party by surprise or would raise issues of fact not appearing
on the face of a prior pleading.’” Nelson,169 A.D.3d at 113. (citing N.Y. C.P.L.R. 3018(b)). The

Nelson Court found that certain issues of standing were such a defense that must be pled
affirmatively. Id. But the defenses raised under RPAPL § 1302(1)(b) and RPL § 421 are both
issues that Plaintiff should have been previously aware of as statutory requirements and are
apparent from the face of the prior pleadings. Moreover, Plaintiff’s arguments concerning
prejudice are untimely. See Obj. at 9–10. As the R&R notes, Plaintiff failed to assert any such
arguments in the original briefing, though given opportunity to do so. R&R at 21. The Court
declines to consider those arguments now, because “new arguments and factual assertions cannot
properly be raised for the first time in objections to the report and recommendation[.]” Piligian v.
Icahn Sch. of Med. at Mount Sinai, 490 F. Supp. 3d 707, 716 (S.D.N.Y 2020) (internal citation
omitted).

Third, Plaintiff contends that the defense under RPL § 421 is unfounded on the merits.
Obj. at 10. Defendants’ Section 421 defense is that Plaintiff failed to demonstrate statutory
compliance because some recordings of power of attorney in the chain of mortgages for the
Property were not in the county where the Property is located. R&R at 23. Plaintiff argues that
this defense must fail because Section 294(1), not Section 421, is the statutory provision that
requires power of attorney to be filed within the registrar of the county where the Property is
located. Obj. at 10. However, Section 421 is the provision that requires the recording for
conveyance of property. N.Y. RPL § 421. For the sake of clarity, it certainly would have been
preferable for Defendants to also reference Section 294(1). But the sole reference to Section 421,
in addition to the explanation for the basis of the defense, is sufficient to raise a meritorious issue
of statutory compliance.
Fourth, Plaintiff asserts the fourth affirmative defense under RPAPL § 1306 must fail
because Plaintiff complied with that provision, which sets out certain requirements for filing

RPAPL § 1304 notices. Obj. at 11–13. But Plaintiff does not contest the fact that it failed to
provide an appropriate telephone number, as required by Section 1306. Plaintiff cites to several
cases for the idea that Section 1306 filing requirements are not “perfunctory”—but provides no
citation that excuses a filer from including the statutorily required information. Plaintiff relies
almost exclusively on CIT Bank N.A. v. Schiffman, 168 N.E.3d 1138 (N.Y. 2021), which held that
in certain cases, not every liable individual needs to be listed on the filing. Id. at 1145. But
providing the contact information for the borrower is a separate matter. Given the R&R’s
extensive analysis of the RPAPL § 1306 minimal requirements and the statutory purpose of
having those requirements, see R&R at 27–30, this argument lacks merit.
Fifth, Plaintiff argues that the twelfth affirmative defense under RPAPL § 1331 must fail.

Obj. at 13–14. This defense is that Plaintiff failed to comply with statutory requirements because
Plaintiff did not show that he filed his complaint along with his notice of pendency. Plaintiff’s
issue with this defense is that it was asserted under Section 1331 when the actual statutory
provision at issue is N.Y. CPLR § 6511(a), which Defendants failed to raise until opposition
briefing. Id. Section 1331 requires a plaintiff to file a notice of pendency at least twenty days
before a final judgment directing a sale is rendered. Section 6511(a) requires a plaintiff to file a
copy of the complaint along with the notice of pendency required by Section 1331, which
Plaintiff appears to have failed to do. Like the dispute over Section 421, discussed above, it
would have been preferable for Defendants to reference Section 6511(a) in its original statement

of affirmative defense. But Defendants’ notice of a defense under the related Section 1331 is
sufficient to state a meritorious defense. Moreover, for the same reasons explained in the R&R at
20-21 and in this Order at 3-4, the fact that Defendants only raised the Section 6511(a) statutory
compliance issue in opposition briefing does not render that argument waived.
Finally, Plaintiff objects that the counterclaim for attorney’s fees should be dismissed
because Plaintiff is entitled to summary judgment in its favor on all other claims. /d. at 14.
Plaintiff is not entitled to summary judgment on all other claims. The attorney’s fees claim
remains viable.
Accordingly, the R&R is ADOPTED in full. Plaintiff’s motion for summary judgment as
to its prima facie case is DENIED. Plaintiff’s motion for summary judgment as to Defendants’
affirmative defenses and counterclaims is GRANTED in part and DENIED in part. Specifically,
Plaintiff’s motion is DENIED with respect to Defendants’ affirmative defenses under RPAPL §
1302(1)(b) and RPL § 421, Defendants’ Fourth and Twelfth affirmative defenses, and
Defendants’ second counterclaim for attorney’s fees. The motion is GRANTED with respect to
all other defenses and counterclaims.
By April 15, 2025, parties shall file a joint status letter with proposed trial dates for June,
August, or September, and the letter shall include whether parties are interested in a referral to
the Mediation Program or for a settlement conference. The Clerk of Court is directed to
terminate ECF No. 28.
Dated: March 27, 2025
New York, New York
SO ORDERED.

/ |
JESSICA G. L. CLARKE
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10832983. Public record. Not legal advice.