Summerlin Asset Management V. Trust v. Oyenuga et al

Filing 46

MEMORANDUM AND ORDER. I adopt the Report and Recommendation in its entirety. The motion for a writ of assistance is denied. Ordered by Judge Ann M. Donnelly on 5/16/2022. (Greene, Donna)

Case 1:15-cv-00769-AMD-RML Document 46 Filed 05/17/22 Page 1 of 3 PageID #: 836

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------- X
:
SUMMERLIN ASSET MANAGEMENT V.
:
TRUST,
Plaintiff,

: MEMORANDUM AND ORDER
: 15-CV-769 (AMD) (RML)

– against –

:
:

MODUPE OYENUGA, et al.,
Defendants.

:

--------------------------------------------------------------- X
ANN M. DONNELLY, United States District Judge:
On February 13, 2015, the plaintiff commenced this foreclosure action relating to a
property located at 102-09 216th Street in Queens Village, New York (the “Property”). (ECF
No. 1.) The defendants did not respond, and the Clerk of Court entered certificates of default
against them. (ECF Nos. 14, 19.) On August 17, 2016, the plaintiff moved for default judgment
(ECF No. 19), and I referred the motion to Magistrate Judge Robert M. Levy for a Report and
Recommendation. Judge Levy issued a Report and Recommendation on February 14, 2017,
recommending that I grant the plaintiff’s motion, order the foreclosure and sale of the Property,
appoint a referee, and enter a judgment against the defendant Modupe Oyenuga in the amount of
$593,420.24. (ECF No. 23.) I adopted Judge Levy’s Report and Recommendation in its entirety
on March 20, 2017, and then entered a judgment of foreclosure and sale of the Property and
appointed a referee. (ECF Nos. 25, 30, 38.) Avail 1 LLC (“Avail”) purchased the property at
auction on February 15, 2019 (ECF No. 40), and this case was closed.
On January 31, 2022, Avail appeared in this action and filed a motion for a writ of
assistance. (ECF No. 42-1 at 3.) Avail states that the defendants Oyenuga and Michael Ilonze

Case 1:15-cv-00769-AMD-RML Document 46 Filed 05/17/22 Page 2 of 3 PageID #: 837

refuse to vacate the Property. Avail seeks an order joining it as a party plaintiff and “granting a
Writ of Assistance and delivering possession of the Property to and in favor of Avail and against
Defendants.” (Id.) I referred the motion to Judge Levy for a Report and Recommendation.
On April 20, 2022, Judge Levy issued a Report and Recommendation in which he
recommended that the motion be denied. (ECF No. 45.) Judge Levy highlighted that Avail
“cites no authority, and the court is aware of none, allowing a non-party purchaser to join a
foreclosure case after final judgment and move for a writ of assistance evicting the previous
owners.” (Id. at 2.) He noted that “Avail’s remedy seems to properly lie in New York State
court, where N.Y. Real Property Actions and Proceedings Law (‘RPAPL’) § 221 permits a grant
of a writ of assistance to a non-party purchaser of a foreclosed property at the court’s discretion.”
(Id. at 4.) No objections have been filed to the Report and Recommendation, and the time for
doing so has passed.
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). To accept those
portions of the report and recommendation to which no timely objection has been made, “a
district court need only satisfy itself that there is no clear error on the face of the record.” Jarvis
v. N. Am. Globex Fund L.P., 823 F. Supp. 2d 161, 163 (E.D.N.Y. 2011) (quoting Wilds v. United
Parcel Serv., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003)).

2

Case 1:15-cv-00769-AMD-RML Document 46 Filed 05/17/22 Page 3 of 3 PageID #: 838

I have reviewed Judge Levy’s comprehensive and well-reasoned Report and
Recommendation and find no error. Accordingly, I adopt the Report and Recommendation in its
entirety. The motion for a writ of assistance is denied.

SO ORDERED.

s/Ann M. Donnelly
___________________________
ANN M. DONNELLY
United States District Judge
Dated: Brooklyn, New York
May 16, 2022

3