United States of America v. Calaman et al

Filing 56

ORDER re 55 Motion to Correct. The court GRANTS the Government's Motion to Correct the Case Caption (Dkt. 55 ). The Clerk of Court is respectfully DIRECTED to (1) amend the caption to list "New York State Department of Taxatio n and Finance" instead of "NY Department of Taxation and Finance"; and (2) enter default judgment against New York State Department of Taxation and Finance, in accordance with this Order as well as the court's prior Memorandum & Order, dated February 2, 2017 (Dkt. 53 ). So Ordered by Judge Nicholas G. Garaufis on 2/6/2017. (docket updated; fwd'd for Entry of Default) (Lee, Tiffeny)

D/f

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK
-X

UNITED STATES OF AMERICA,

Plaintiff,

ORDER

15-CV-180(NGG)
(PK)

-againstDONALD CALAMAN;TOBY CALAMAN;
CITIBANK,N.A.; RUTH CALAMAN,
TRUSTEE,on behalf of 121 MARLBOROUGH
ROAD TRUST; RUTH CALAMAN,TRUSTEE,
on behalf ofTHE NEW HAVEN TRUST;
CAPITAL ONE BANK,NA;and NEW YORK
DEPARTMENT OF TAXATION AND

FINANCE,
Defendants.
-X

NICHOLAS G. GARAUFIS,United States District Judge.

On January 13,2015,Plaintiff the United States of America(the "Government")brought
this action to enforce federal tax liens encumbering Defendant Donald Calaman's interest in

certain real property. (See Compl.(Dkt. 1).) On March 15,2016,the Government moved for a
defaultjudgment against Defendant New York Department of Taxation and Finance
(the "Motion"). (See Mot. for Default J.(Dkt. 34).) The Motion requested that a default

judgment be entered in favor ofthe Government and against NY Department of Taxation and
Finance declaring (i)that the Government's federal tax liens are superior to NY Department of
Taxation and Finance's interest in the real property located at 121 Marlborough Road, Brooklyn,

New York(the "Marlborough Road Property")and in the proceeds ofany sale ofthe

Marlborough Road Property, and (ii)that NY Department of Taxation and Finance's interest in
the Marlborough Road Property shall be extinguished upon the sale ofthe property. (See
Proposed Order(Dkt. 34-4).)

By Order dated April 5,2016,the court referred the Motion to Magistrate Judge Peggy
Kuo for a Report and Recommendation("R&R")pursuant to 28 U.S.C. § 636(b)(1)(B) and
Federal Rule of Civil Procedure 72(b)(1). (Apr. 5, 2016, Order Referring Mots.) On
November 16,2016, Judge Kuo issued an R&R recommending that the court should only grant
the Motion ifthe Government cured certain defects in service. (R&R(Dkt.43)at 2.) On

February 2, 2017,this court adopted Judge Kuo's R&R in part and, in light ofthe fact that the
Government had cured the service issues identified in the R&R,granted the Government's

Motion for Default Judgment against NY Department of Taxation and Finance (the "Default
Judgment Order"). (Order re R&R(Dkt. 53).)

Before the court now is the Government's Motion to Correct the Case Caption from "NY

Department of Taxation and Finance" to'New York State Department of Taxation and Finance."
(Mot. to Amend Case Caption (Dkt. 55)at 1.) The Government explains that the Summons and
Complaint in this action abbreviated Defendant New York State Department of Taxation and
Finance to "NY Department of Taxation and Finance." (Id at 3.) New York State Department

of Taxation and Finance was served and properly made a party to this action, however. (Id)
Furthermore, in addition to the Summons and Complaint, New York State Department of

Taxation and Finance was served by certified mail with the Government's Motion for Default
Judgment and Judge Kuo's R&R. (Id at 3-4.)

Because the proper entity. New York State Department of Taxation and Finance, was
both(1)served with the Summons and Complaint and(2)notified ofthe Government's Motion

for Default Judgment,* the court finds that New York State Department of Taxation and Finance
will not be prejudiced by an amendment ofthe case caption. Accordingly, the court GRANTS

^ tSee Retum ofSummons(Dkt. 27); Mot.for Default J.(Dkt. 34)at EOF p.5; Cert, of Serv.(Dkt. 51).)
2

the Government's Motion to Correct the Case Caption(Dkt. 55). See Gars v. Winterthur,

525 F. Supp. 2d 315,317(E.D.N.Y. 2007)("Courts have been inclined to allow amendment

where the proper entityis served,though incorrectly named, absent a showing of prejudice.");
United States v. Edwards. 241 F.R.D. 146,149(E.D.N.Y. 2007)(allowing amendment under the
"misnomer rule" where "it would be reasonable to conclude that plaintiff had in mind the proper

entity or person, merely made a mistake as to the name,and actually served the entity or person
intended"(intemal quotation marks and citation omitted)).
Moreover,the court finds that the analysis in its February 2,2017, Default Judgment

Order applies with equal force to New York State Department of Taxation and Finance. New

York State Department of Taxation and Finance is therefore ADJUDGED to have no right, title,
claim, or lien interest in the real property located at 121 Marlborough Road,Brooklyn,New
York.

The Clerk of Court is respectfully DIRECTED to (1)amend the caption to list"New

York State Department of Taxation and Finance" instead of"NY Department of Taxation and

Finance"; and(2)enter defaultjudgment against New York State Department of Taxation and
Finance, in accordance with this Order as well as the court's prior Memorandum & Order, dated
February 2, 2017(Dkt. 53).
SO ORDERED.

s/Nicholas G. Garaufis
Dated: Brooklyn, New York

February

,2017

N

CHOLAS G. GARAUFIS

United States District Judge