Bank of America v. Viders

Filing 34

ORDER ADOPTING REPORT AND RECOMMENDATION (docket no. 33 ) in toto and granting in part, and denying in part as moot, plaintiff's Motion for Damages (docket no. 27 ). The Clerk of Court is directed to enter judgment as set forth in the attached Order. Ordered by Senior Judge Denis R. Hurley on 9/23/2011. (Malley, Sean)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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BANK OF AMERICA, NATIONAL
ASSOCIATION, AS SUCCESSOR BY
MERGER TO LASALLE BANK NATIONAL
ASSOCIATION, AS TRUSTEE FOR THE
REGISTERED HOLDERS OF J.P. MORGAN
CHASE COMMERCIAL MORTGAGE
SECURITIES TRUST 2007-LDP 11,
COMMERCIAL MORTGAGE
PASSTHROUGH CERTIFICATES
SERIES 2007-LDP 11,

ORDER
10 CV 0025 (DRH)(ARL)

Plaintiff,
-against-

JAY R. VIDERS,
Defendant.
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HURLEY, Senior District Judge:
By Order dated December 28, 2010, the Court granted plaintiff lender's motion for
summary judgment as to liability and referred the matter to Magistrate Judge Lindsay pursuant to
28 U.S.C. § 636, for a Report and Recommendation ("Report") as to the appropriate amount of
damages, attorney's fees and costs to be awarded. (Docket No. 22.) Shortly thereafter, defendant
filed an appeal of that Order to the Second Circuit, which he later withdrew. (Docket Nos. 24,
28.)
On July 8, 2011, the parties filed a joint letter to the Court, indicating that they had
reached a settlement "on all matters other than attorney's fees." (Docket No. 30.) On that issue
alone, the parties deferred to the Court's determination on plaintiff's then-pending application,
which in addition to attorney's fees, had also sought damages and costs. (Docket No. 27.)

On July 26, 2011, Judge Lindsay filed a Report, recommending that plaintiff be awarded
attorney's fees in the amount of $18,470.50 as well as costs in the amount of $1,020.74. (Docket
No. 33.) Although it is not entirely clear from the parties' July 8, 2011 letter whether they
intended the remaining issue of "attorney's fees" to encompass costs as well, more than fourteen
days have passed since the entry of the Report, which recommends the award of costs, and
neither party has filed objections. The Court therefore assumes that the parties intended to defer
to the Court on the matter of costs as well as attorney's fees. In any event, by failing to file
objections, the parties (and defendant in particular) have waived appellate review of Judge
Lindsay's recommendation that costs also be awarded. See Cephas v. Nash, 328 F.3d 98, 107 (2d
Cir. 2003)("As a rule, a party's failure to object to any purported error or omission in a magistrate
judge's report waives further judicial review of the point.")
Pursuant to 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72, this Court has reviewed the Report
for clear error, and finding none, now concurs in both its reasoning and its result. Accordingly,
this Court adopts the July 26, 2011 Report of Judge Lindsay as if set forth herein. The Clerk of
Court is directed to enter judgment as follows: plaintiff recovers from defendant in the amount of
$19,491.24.

SO ORDERED.

Dated: Central Islip, N.Y.
September 23, 2011

/s
Denis R. Hurley
United States District Judge