U.S. Bank National Association, as Trustee for the Registered Holders of WaMu Commercial Mortgage Securities Trust 2007-SL3, Commercial Mortgage Pass-Through Certificates, Series 2007-SL3 v. Yhun et al

Filing 76

MEMORANDUM and ORDER ADOPTING REPORT AND RECOMMENDATION: No error, plain or otherwise, appears on the face of the Report and Recommendation. Accordingly, the Court adopts the Report and Recommendation, with the modification that per diem interest shall accrue from November 1, 2017. The Clerk shall enter judgment accordingly, in the form proposed by 5316 Church. Ordered by Judge Frederic Block on 11/28/2018. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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5316 CHURCH AVENUE, LLC,
Plaintiff,
-against-

MEMORANDUM AND ORDER
Case No. 14-CV-7376 (FB) (RER)

DIANE YHUN and the CITY OF NEW
YORK PARKING VIOLATIONS
BUREAU and RIKI DI LLC,
Defendants.
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BLOCK, Senior District Judge:
Magistrate Judge Reyes has issued a Report and Recommendation (“R&R”)
recommending that Diane Yhun’s liability on a note held by 5316 Church Avenue,
LLC (“5316 Church”), be fixed at $820,784.25 plus interest of $256.36 per day
until the property securing the note is sold. The R&R advised that objections
were due within fourteen days of service and warned that “[f]ailure to file timely
objections waives the right to appeal the District Court’s order.” R&R 9. The
R&R was served electronically on July 18, 2018, making objections due August 1,
2018. To date, no objections have been filed.1

While not formally objecting to the R&R, 5316 Church notes that it
calculates Yhun’s liability as of November 1, 2017, but recommends that per diem
interest run from November 30, 2017. The Court agrees that the latter date is a
typographical error, and that per diem interest should run from November 1, 2017.
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Where clear notice has been given of the consequences of failure to object,
and there are no objections, the Court may adopt the R&R without de novo review.
See Thomas v. Arn, 474 U.S. 140, 149-50 (1985); Mario v. P & C Food Mkts., Inc.,
313 F.3d 758, 766 (2d Cir. 2002) (“Where parties receive clear notice of the
consequences, failure 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, however, 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 error, plain or otherwise, appears on the face of the R&R. Accordingly,
the Court adopts the R&R, with the modification that per diem interest shall accrue
from November 1, 2017. The Clerk shall enter judgment accordingly, in the form
proposed by 5316 Church.
SO ORDERED.
_/S/ Frederic Block_________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
November 27, 2018

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