Onewest Bank, N.A. v. Cole et al

Filing 52

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATION: Magistrate Judge Reyes Amended Report & Recommendation 48 contains no error, let alone plain error. Accordingly, the Court adopts the Amended Report & Recommendation without de novo review and directs the Clerk to amend the 2015 Judgment in accordance with the Amended Report & Recommendation. Ordered by Judge Frederic Block on 3/18/2016. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ONE WEST BANK, N.A.,
Plaintiff,
-againstPAUL COLE, BLOSSOM COLE, HSBC
FINANCE CORPORATION
SUCCESSOR BY MERGER TO HSBC
BANK NEVADA, NA A/S/I/T DIRECT
MERCHANTS CRT CD BANK, NEW
YORK CITY ENVIRONMENTAL
CONTROL BOARD, NEW YORK CITY
TRANSIT ADJUDICATION BUREAU,
TAMARA GUSTAVOS, JODY ANN
COLE, KADYANN COLE, PAUL COLE,
JR., TESSA COLE,

MEMORANDUM AND ORDER
14-CV-03078 (FB) (RER)

Defendants.
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Appearances:
For the Plaintiff:
KEITH R. YOUNG, ESQ.
Gross Polowy, LLC
1775 Wehrle Drive, Suite 100
Williamsville, New York 14221

BLOCK, Senior District Judge:
On July 17, 2015, this court granted default judgment (the “2015 Judgment”)in
favor of One West Bank, N.A. (“One West”) and against defendant Paul Cole (“Cole”)
in the amount of $543,988.36, and further ordered a judgment of foreclosure and sale

as to the subject property located on Quencer road in Saint Albans, New York. The
2015 Judgment adopted Magistrate Judge Reyes’ Report and Recommendation from
April 17, 2015.
On November 16, 2015, One West asked Magistrate Judge Reyes to amend the
2015 Judgment because it excluded three defendants. In particular, defendants New
York City Environmental Control Board (“ECB”), New York City Transit Adjudication
Bureau (“TAB”), and HSBC Finance Corporation (“HSBC”) were like Cole, in
default.1
On January 19, 2016, Magistrate Judge Reyes issued an amended Report and
Recommendation (the “Amended R&R”) recommending that this court include the
following provision in the 2015 Judgment:
Further, with the exception of Tamara Gustavos, Jodyann Cole, Kadyann
Cole, Paul Cole, Jr., and Tessa Cole, that defendants and all persons
claiming under them, or any or either of them, after the filing of such
Notice of Pendency of this action, be and they hereby are, barred and
foreclosed of all right, claim, lien, title, interest and equity of redemption
in the said mortgaged premises and each and every part thereof.
Amended R&R at 8. The Amended R&R provided that failure to object within fourteen
days of receipt would preclude appellate review. See id. at 13. Copies of the Amended

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Defendants John Doe, Blossom Cole, and Paul Cole were ordered
dismissed on July 17, 2015. Defendants Paul Cole, Jr., Tessa Cole, Tamara
Gustavos, Jodyann Cole, and Kadyann Cole were ordered dismissed on October
20, 2015.
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R&R were mailed to ECB, TAB, and HSBC on January 19, 2016. To date, no
objections have been filed.
A district court may correct a mistake in a judgment arising from oversight or
omission “whenever one is found in a judgment, order, or other part of the record. The
court may do so on motion or on its own, with or without notice.” Fed. R. Civ. Proc.
60(a). It may also modify a partial judgment. See Fed. R. Civ. Proc. 54(b) (“[A]ny
order. . .that adjudicates fewer. . . than all the claims or the rights and liabilities of fewer
than all the parties does not end the action as to any of the claims or parties and may be
revised at any time before the entry of a judgment adjudicating all the claims and all the
parties’ rights and liabilities.”). The Court construes the Amended R&R as
recommending modification of the 2015 Judgment under these provisions.
If clear notice has been given of the consequences of failure to object, and there
are no objections, the Court may adopt the Amended R&R without de novo review. See
Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002) (“Where parties
receive clear notice of the consequences, failure to timely to object to a magistrate’s
report and recommendation operates as a waiver of further judicial review of the
magistrate’s decision.”). 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.

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2000).
Magistrate Judge Reyes’ Amended R&R contains no error, let alone plain error.
Accordingly, the Court adopts the Amended R&R without de novo review and directs
the Clerk to amend the 2015 Judgment in accordance with the Amended R&R.

SO ORDERED.
/S/ Frederic Block_________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
March 17, 2016

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