Thomas

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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WINDWARD BORA LLC,

Plaintiff,

REPORT AND

-against- RECOMMENDATION

24 CV 8823 (EK) (PCG)

IRA THOMAS, NEW YORK CITY

ENVIRONMENTAL CONTROL BOARD,

NEW YORK CITY PARKING VIOLATIONS

BUREAU, NEW YORK CITY TRANSIT

ADJUDICATION BUREAU,

Defendants.

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CROSS-GOLDENBERG, United States Magistrate Judge:

On December 26, 2024, plaintiff Windward Bora LLC (“Windward Bora” or “plaintiff”)

commenced this action against defendants Ira Thomas (“Thomas”), the New York City

Environmental Control Board (“NYCECB”), the New York City Parking Violations Bureau

(“NYCPVB”), and the New York City Transit Adjudication Bureau (“NYCTAB”), seeking to

foreclose on a mortgage encumbering the property located at 146-35 182nd Street, Springfield

Gardens, New York 11413 (the “Subject Property”), pursuant to New York Real Property

Actions and Proceedings Law, Section 1301 et seq. (Dkt. No. 1). It now seeks entry of default

judgment against the defendants. Because plaintiff’s motion for default judgment does not

comply with Local Civil Rule 55.2(a)(3) as to defendant Thomas, plaintiff’s complaint does not

establish liability as to defendants NYCPVB and NYCTAB, and default judgment against

NYCECB alone would be premature, the Court respectfully recommends that plaintiff’s motion

be denied as explained below.

STATEMENT OF FACTS

Plaintiff Windward Bora alleges that it is a single member limited liability company,

whose sole member is domiciled in the state of Florida. (Compl. ¶ 2).1 The Complaint alleges

that defendant Ira Thomas, the borrower of the loan and mortgagor under the Mortgage, is a

citizen of the State of New York, residing at 146-35 182nd Street, Springfield Gardens, N.Y.

11413 or 1135 Bergen Avenue, Brooklyn, N.Y. 11234. (Id. ¶ 3). The remaining defendants are

alleged to be administrative tribunals of the City of New York, and necessary parties having an

interest in or liens upon the Subject Property that are subordinate to plaintiff’s Mortgage. (Id. ¶¶

4-7).2

According to the Complaint, on November 15, 2005, defendant Ira Thomas executed a

Note and Mortgage in the amount of $86,000 to Aames Funding Corporation DBA Aames Home

Loan (“Aames”), secured by the Subject Property. (Id. ¶ 10, Ex. B). The Mortgage was recorded

in the Queens County Clerk’s Office on December 22, 2005 (CRFN: 2005000703627) (the

“Mortgage”). (Id., Ex. B). The Mortgage was thereafter assigned to plaintiff through a series of

assignments. (Id. ¶ 13). First, it was assigned to American Servicing and Recovery Group, LLC

by an Assignment of Mortgage, dated November 23, 2005; then it was reassigned on June 7,

2017 to DBI/ASG Mortgage Holdings, a Delaware LLC; and then finally assigned to plaintiff

Windward Bora on October 2, 2017. (Id., Ex. E). On or about August 31, 2023, defendant

Thomas entered into a Loan Modification Agreement, in which the new principal balance was

modified to $195,000.00. (Id. ¶ 12, Ex. D). Plaintiff alleges that it is in physical possession of

1 Citations to “Compl.” refer to plaintiff’s Complaint filed December 26, 2024. (Dkt. No. 1).

2 For purposes of determining diversity jurisdiction, under 28 U.S.C. § 1391, plaintiff, as an LLC whose

sole member is domiciled in Florida, is a Florida citizen and therefore diverse from all the defendants who are

citizens of New York. (See Compl. ¶ 8). Given plaintiff’s allegation that the amount in controversy exceeds

$75,000, the Court has jurisdiction to consider the action. Id.

the Note and Mortgage, and because it is the owner and holder of the Note and Mortgage, it has,

or it has been delegated, the authority to institute a mortgage foreclosure action. (Id. ¶ 15).

According to plaintiff, defendant Thomas failed to comply with the terms of the

Mortgage by failing to make the monthly payment that was due on December 1, 2023, and he

has continued to default on his payment obligations since then. (Id. ¶¶ 16, 19). Plaintiff further

alleges that it has complied with all of its contractual obligations, including serving defendant

with a 90-day notice to cure, and complying with all of the provisions of sections 1304 and 1306

of the Real Property Actions and Proceedings Law (“RPAPL”), and Sections 595a and 6-1 of the

Banking Law. (Id. ¶¶ 17, 18, Ex. F).

Plaintiff asserts that due to the default, defendant owes the unpaid principal amount due

under the Note as modified, together with all accrued and unpaid interest, late charges, and other

fees and costs permitted by the Note, the Mortgage, and the Loan Modification Agreement. (Id.

¶ 20(a)). Plaintiff also seeks attorneys’ fees and costs and any and all additional fees that are due

or become payable under the Note and the Mortgage. (Id. ¶¶ 20(b), (c)). The Complaint further

seeks various conditions to be imposed should the action proceed to a judgment of foreclosure

and sale. (Id. ¶ 21(a)-(g)).

DISCUSSION

When defendants failed to file an Answer or otherwise respond to the Complaint, plaintiff

obtained a default from the Clerk of Court and filed the instant motion for default judgment. See

Dkt. Nos. 14 (Entry of Default), 15 (Motion for Default Judgement). For the reasons stated

below, the Court respectfully recommends that plaintiff’s motion be denied.

I. Legal Standard

Rule 55(a) of the Federal Rules of Civil Procedure provides that “[w]hen a party against

whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that

failure is shown by affidavit or otherwise, the clerk must enter the party’s default.” Fed. R. Civ.

P. 55(a). Rule 55 sets forth a two-step process for an entry of default judgment. See Enron Oil

Corp. v. Diakuhara, 10 F.3d 90, 95–96 (2d Cir. 1993). First, the Clerk of the Court automatically

enters the default pursuant to Rule 55(a) by notation of the party’s default on the Clerk’s record

of the case. See id. Second, after the Clerk of the Court enters default against a party, if that

party fails to appear or otherwise move to set aside the default pursuant to Rule 55(c), the court

may enter default judgment. See Fed. R. Civ. P. 55(c).

When a defendant defaults, the defendant is deemed to have admitted every well-pleaded

allegation of the complaint, “except those relating to damages.” See Au Bon Pain Corp. v.

Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981); Wing v. E. River Chinese Rest., 884 F. Supp. 663,

669 (E.D.N.Y. 1995); see also Hernandez Gomez v. 4 Runners, Inc., 769 F. App’x 1, 2 (2d Cir.

2019) (summary order). The Court, however, must review the allegations in the complaint to

determine if the elements of each claim have been adequately pleaded. See Allstate Ins. Co. v.

Tapper, No. 14-CV-5410, 2015 WL 6869702, at *2 (E.D.N.Y. Nov. 9, 2015).

In determining whether a default judgment should be entered, the Second Circuit has

cautioned that a default judgment is an extreme remedy that “must remain a weapon of last,

rather than first, resort.” Meehan v. Snow, 652 F.2d 274, 277 (2d Cir. 1981). While the Second

Circuit has recognized the “push on a trial court to dispose of cases that, in disregard of the rules,

are not processed expeditiously [and] . . . delay and clog its calendar,” it has held that the district

court must balance that interest with its responsibility to “[afford] litigants a reasonable chance

to be heard.” Enron Oil Corp., 10 F.3d at 95–96. Thus, in light of the “oft-stated preference for

resolving disputes on the merits,” default judgments are “generally disfavored,” and doubts

should be resolved in favor of the defaulting party. Id. Accordingly, plaintiff is not entitled to a

default judgment as a matter of right simply because the defendants are in default. See Erwin

DeMarino Trucking Co. v. Jackson, 838 F. Supp. 160, 162 (S.D.N.Y. 1993) (noting that courts

must “supervise default judgments with extreme care to avoid miscarriages of justice”). The

court has significant discretion and may consider a number of factors in deciding whether to

grant a default judgment.

In addition to following the Federal Rules of Civil Procedure, parties requesting default

judgment must also follow the Local Civil Rules of the District where default judgment is

sought. Local Civil Rule 55.2(a) sets out specific procedures for parties seeking default

judgment. Parties must file documents in support of their request for default judgment, including

an “affidavit or declaration” and, if proceeding by motion, “a memorandum of law [and] a

proposed order detailing the proposed judgment to be entered.” L.R. 55.2(a)(1)-(3). Parties

must also file “a certificate of service stating that all documents in support of the request for

default judgment . . . have been personally served on, or mailed to the last known residence (for

an individual defendant) . . . of, the party against whom default judgment is sought.” L.R.

55.2(a)(3). Failure to comply with Local Civil Rule 55.2 is basis to deny a motion for default

judgment. See Baghwat v. Queens Carpet Mall, Inc., 2015 WL 13738456, at *1 (E.D.N.Y. Nov.

24, 2015) (“[A] motion for default judgment will not be granted unless the party making that

motion adheres to certain local and individual rules.”); United States v. Hamilton, No. 18- CV-

2011, 2019 WL 6830318, at *3 (E.D.N.Y. Nov. 26 2019) (denying motion for default judgment

because plaintiff failed to follow Local Rule 55.2(c)) (collecting cases), report and

recommendation adopted, 2019 WL 6828276, at *1 (Dec. 13, 2019).

II. Plaintiff Failed to Comply with Local Civil Rule 55.2(a)(3) as to Defendant Thomas

The Court respectfully recommends that plaintiff’s motion for a default judgment against

Thomas be denied for failure to comply with Local Civil Rule 55.2(a)(3).

As a preliminary matter, the Court notes that plaintiff alleges that Thomas “is a resident

and citizen of the State of New York, having an address at 146-35 182nd Street, Springfield

Gardens, NY 11413 or 1135 Bergen Avenue, Brooklyn, NY 11234.” (Compl. ¶ 3). The Subject

Property is located at 146-35 182nd Street, Springfield Gardens, NY 11413. Plaintiff did not cite

documentation to substantiate Thomas’s second address included in its complaint. It appears

from plaintiff’s other filings that Thomas’s alternate address is 1136 Bergen Avenue, Brooklyn,

NY 11234. Plaintiff addressed the notice of default on the mortgage to Ira Thomas at the Subject

Property and at 1136 Bergen Ave, Brooklyn, NY 11234. (Notice of Default, Dkt. No. 1-1, Ex.

F). On March 11, 2025, plaintiff’s process server affixed a copy of the complaint and the 1303

Notice – Help for Homeowners in Foreclosure to the door at 1136 Bergen Avenue Apt 1,

Brooklyn, NY 11234 and affirmed in his affidavit that this is “defendant’s place of residence

within the state.” (Aff. of Service, Dkt. No. 12) (alteration omitted). The process server also

affirmed that he “spoke with tenants on ground floor of premises, who stated to deponent that

said Defendant(s) lived there. . . .” (Id.) (alterations omitted). Apart from affixing a copy of

these documents to the door of 1136 Bergen Avenue, Apt. 1, the process server also mailed

copies to the same address by First Class Mail, on March 14, 2025. (Id.). The process server’s

Affidavit indicates that prior to March 11, 2025, he had made four prior attempts to serve

defendant Thomas in person on January 25, 2025, February 22, 2025, March 5, 2025, and March

6, 2025, but was unable to find defendant or a person of suitable age and discretion to serve

personally. (Id.). For the purposes of this motion, the Court treats the inclusion of 1135 Bergen

Avenue in the complaint as a scrivener’s error and considers 1136 Bergen Avenue Thomas’s last

known address. Whichever address is his correct last known address, plaintiffs have failed to

comply with Rule 55.2(a)(3).

Here, plaintiff’s motion for default judgment and supporting papers, including a

Declaration of Regularity (Dkt. No. 15-1), Memorandum of Law (Dkt. No 15-2), and Proposed

Judgment of Foreclosure and Sale (Dkt. No. 15-3), were mailed to defendant Ira Thomas at 146-

35 182nd Street, i.e., at the Subject Property. (See Aff. of Service, Dkt. No. 15-9). But plaintiff

alleged that defendant Thomas resides at either the Subject Property or the Bergen Avenue

address. The process server who served Thomas with plaintiff’s summons and complaint

affirmed that the Bergen Avenue address was defendant Thomas’s “place of residence.” (See

Compl., ¶3; Aff. of Service, Dkt. No. 12). Thus, by only mailing the motion for default

judgment and the supporting documents to the Subject Property address, plaintiff failed to serve

“all documents in support of the request for default judgment” on defendant Thomas at his “last

known residence” as required under Rule 55.2(a)(3).3 The Court also observes that plaintiff was

ordered to serve the Court’s Order dated October 21, 2025 on defendants, and that plaintiff again

only served the Order on defendant Thomas at the Subject Property. In light of the failures to

3 As an aside, should it be plaintiff’s position that defendant Thomas in fact resides at the Subject Property,

then the Court must recommend that plaintiff’s motion for default judgment be denied for lack of service. Under

Rule 4 of the Federal Rules of Civil Procedure, service may be effectuated by “following state law for serving a

summons.” Fed. R. Civ. P. 4(e)(1). Under New York law, service may be effectuated “by affixing the summons to

the door of either the actual place of business, dwelling place or usual place of abode within the state of the person

to be served and by . . . mailing the summons to such person at his or her last known residence.” N.Y.C.P.L.R.

§308.4. Plaintiff’s process server affixed an envelope with the summons and complaint to the Bergen Avenue

address only. (See Aff. of Service, Dkt. 12). If the Subject Property was defendant Thomas’s “dwelling place or

usual place of abode,” then plaintiff would have had to serve the summons and complaint there instead of at the

Bergen Avenue address. See Fed. R. Civ. P. 4(e)(1); N.Y.C.P.L.R. §308.4.

serve Thomas at his last known residence, the Court respectfully recommends that the motion for

default judgment against him be denied without prejudice.

III. The Motion Papers Do Not Establish Liability Against NYCPVB and NYCTAB

The Court respectfully recommends that plaintiff’s motion be denied as to defendants

NYCPVB and NYCTAB because plaintiff’s motion papers do not establish liability against

them. Defendants NYCPVB and NYCTAB are alleged to hold a lien in the Subject Property

subordinate to plaintiff’s mortgage. Under New York law, “[e]very person having any lien or

incumbrance upon the real property which is claimed to be subject and subordinate to the lien of

the plaintiff” is a necessary party to a mortgage foreclosure action. RPAPL § 1311(3). This

includes entities that hold subordinate liens and therefore only have a “nominal interest” in the

property. E. Sav. Bank, FSB v. Robinson, No. 13-CV-7308, 2016 WL 3365091, at *4 (E.D.N.Y.

May 9, 2016) (“Courts regularly enter default judgments in foreclosure actions against

defendants with ‘nominal interests’ in the relevant property, including parties holding

subordinate liens or non-owner tenants” (collecting cases)), report and recommendation adopted,

No. 13-CV-7308, 2016 WL 3102021 (E.D.N.Y. June 2, 2016). “When a default judgment is

entered against a defendant with a ‘nominal interest’ in a property, any such interest in the

relevant property is terminated.” Robinson, 2016 WL 3365091, at *4 (citation omitted).

RPAPL imposes a heightened pleading standard “where a state or city agency is named as

a defendant.” Windward Bora v. Thompson, 2020 WL 1242828, at *5 (E.D.N.Y. Mar. 16, 2020)

(citations omitted). In those instances, the complaint “must allege ‘detailed facts showing the

particular nature of the interest in or lien on the real property and the reason for making the state

or city agency a party-defendant.’” Id. (alterations omitted) (quoting RPAPL §§ 202(1), 202-

a(1)). “If the lien exists ‘by virtue of a judgment,’ and the defendant is a state agency, the

complaint must include ‘the name of the court, date recorded, clerk’s office in which filed, and

names of the parties against whom and in whose favor the judgment was

recorded.’” Id. (alteration omitted) (quoting RPAPL § 202(2)). “If the defendant is a city agency,

the complaint must include that same information, as well as ‘a brief description of the grounds

for or the nature of such judgment.’” Id. (quoting RPAPL § 202-a(2)). See also JXB 84 LLC v.

Khalil, 15-CV-6251, 2017 WL 1184001, at *4–5 (E.D.N.Y. Feb. 17, 2017), report and

recommendation adopted, 2017 WL 1184141 (E.D.N.Y. Mar. 29, 2017) (granting default

judgment against a city agency where plaintiff included documentation identifying the liens, and

recommending that the motion for default judgment be denied and the claim dismissed against a

different city agency, where plaintiff failed to support its assertion that the defendant may have

an interest in or lien upon the subject property).

Plaintiff alleges that NYCTAB and NYCPVB are necessary parties to this action “by

virtue of having filed lien(s) or judgment(s) against the borrower and/or Subject Property,

which are subordinate for Plaintiff’s Mortgage.” (Compl. ¶¶ 5-6). To support its allegations as

to default judgment against NYCTAB, plaintiff included a printout of a “TAB Book” that lists

transit violations of eight individuals with the name “Ira Thomas” or just “Thomas” and their

addresses, none of which are the address of the Subject Property (146-35 182nd Street,

Springfield Gardens) or defendant Ira Thomas’s last known address (1136 Bergen Avenue,

Brooklyn). (Compare Compl., Ex. G with Compl., ¶3). Moreover, each “Thomas” has a

different date of birth. (Id.) Based on the documentation provided, the Court cannot ascertain

whether there is in fact a judgment against defendant Ira Thomas, and as such recommends that

default judgment be denied as to defendant NYCTAB, and that the claims against it be

dismissed.

The same is true regarding defendant NYCPVB: plaintiff submitted a search result for

parking violations against “IRA THOMAS.” (Compl., Ex. G). Plaintiff submitted one search

result, a judgment in the amount of $1,095 against “THOMAS IRA K” with an address of “197

Birchall Ave” in the Bronx, New York. (Id.). As with the TAB violations, the Court is unable to

ascertain whether this judgment is in fact against defendant Ira Thomas. Accordingly, the Court

respectfully recommends that default judgment be denied as to defendant NYCPVB, and that the

claims against it be dismissed.

IV. Judgment Against NYCECB Only Would Be Premature

In light of the recommendations above, the Court also respectfully recommends that

default judgment against NYCECB be denied. Courts have held that, notwithstanding well-

pleaded allegations against subordinate lienholders, default judgment may be denied when the

subordinate lienholder’s “rights and obligations are implicated only in the event of a foreclosure

judgment against [] the current owner of the Property.” See NDF1, LLC. v. Cunningham, 754 F.

Supp. 3d 273, 287 (E.D.N.Y. 2024) (citing Wells Fargo Bank, N.A. v. Watts, No. 16-CV-6919,

2019 WL 3716190, at *1 (E.D.N.Y. Jan. 3, 2019), report and recommendation adopted, 2019 WL

3714582 (E.D.N.Y. Mar. 13, 2019)).

Plaintiff alleges that NYCECB is a party to this action “because it is a judgment creditor

by virtue of Environmental Control Board Violations filed against the borrower and/or property,

which are subordinate to Plaintiff’s Mortgage.” (Compl., ¶ 4). To support its allegation, plaintiff

attached a search for ECB violations against Ira Thomas. (Compl., Ex. G). Two results list the

borrower’s name and the Subject Property Address, and include the violation number, order date,

notice date, docket date, and the balance due. (Id.). The Court finds that the documentation

submitted by plaintiff is sufficient to meet RPAPL 202-a’s heightened pleading standard. But

notwithstanding plaintiff’s well-pleaded allegations against NYCECB, default judgment against

NYCECB is premature at this stage because the Court is recommending that judgment of

foreclosure against borrower Thomas be denied. Accordingly, the Court respectfully

recommends that default judgment against NYCECB be denied without prejudice, and that

plaintiff be permitted to move for a default judgment against NYCECB if and when it files a

renewed motion for default judgment and foreclosure against Mr. Thomas.

CONCLUSION

In light of the foregoing, the Court respectfully recommends that plaintiff’s motion for

default judgment and judgment of foreclosure and sale against all defendants be denied as

follows: the motion for default judgment against Ira Thomas and NYCECB be denied without

prejudice to renew and the motion for default judgment against NYCPVB and NYCTAB be

denied and the claims against them be dismissed.

Any objections to this Report and Recommendation must be filed with the Clerk of the

Court, with a copy to the undersigned, within fourteen (14) days of receipt of this Report. 28

U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(a) (providing the method

for computing time). Failure to file objections within the specified time waives the right to

appeal the district court’s order. See, e.g., Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d

Cir. 2008).

Plaintiff is Ordered to serve a copy of this Report and Recommendations on defendant

at his last known address promptly via overnight delivery or courier and file proof of service

immediately thereafter.

SO ORDERED.

Dated: February 26, 2026

Brooklyn, New York

/s/ Peggy Cross-Goldenberg

PPEGGY CROSS-GOLDENBERG

United States Magistrate Judge

Eastern District of New York