OneWest Bank, N.A. v. Buono et al

Filing 54

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATIONS; Judge Lindsay's R&R (Docket Entry 52) is ADOPTED in its entirety. Plaintiff's motion for default (Docket Entry 33) is GRANTED. Capital One is barred from asserting its right under it s lien after the Notice of Pendency of this action is filed, and Plaintiff's claims against John Doe are discontinued without prejudice. The Clerk of the Court is directed to TERMINATE John Doe as a defendant in this action. Plaintiff is directed to serve Capital One with a copy of this Memorandum and Order and file proof of service on ECF. So Ordered by Judge Joanna Seybert on 8/29/2016. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
CIT Bank, N.A.,
Plaintiff,
-againstANTHONY BUONO, MARY ELLEN BUONO,
CAPITAL ONE BANK, and JOHN DOE,

MEMORANDUM & ORDER
14-CV-6610(JS)(ARL)

Defendants.
---------------------------------------X
APPEARANCES
For Plaintiff:
Allison J. Schoenthal, Esq.
Allison M. Funk, Esq.
Nicole E. Schiavo, Esq.
Priya Swaminathan, Esq.
Hogan Lovells US LLP
875 Third Avenue
New York, NY 10022
Steven Rosenfeld, Esq.
Gross Polowy LLC
1775 Wehrle Dr., Suite 100
Williamsville, NY 14221
For Defendants:
Anthony and
Mary Ellen Buono

Capital One Bank

Michal Falkowski, Esq.
Paykin, Richland & Falkowski, P.C.
350 5th Avenue, 59th Floor
New York, NY 10118
No appearance

SEYBERT, District Judge:
Pending before the Court is Magistrate Judge Arlene R.
Lindsay’s Report and Recommendation (“R&R”) recommending that this
Court grant plaintiff CIT Bank, N.A.’s (“Plaintiff”) motion for
default judgment against defendant Capital One Bank (“Capital

One”).1

(R&R, Docket Entry 52.)

For the following reasons, the

Court ADOPTS Judge Lindsay’s R&R in its entirety.
BACKGROUND
On

November

10,

2014,

Plaintiff

commenced

this

foreclosure action against defendants Anthony Buono and Mary Ellen
Buono (collectively, the “Buonos”), Capital One, and John Doe.
(See generally Compl.)

The Complaint alleges that Capital One is

the “holder of a lien encumbering the property, which is subject
and subordinate to Plaintiff’s mortgage.”
One has not appeared in this action.

(Compl. ¶ 5.)

Capital

The Clerk of the Court

entered a certificate of default against Capital One on March 30,
2015.

(Docket Entry 19.)
On October 14, 2015, Plaintiff moved for the entry of a

default judgment against Capital One.

(Pl.’s Mot.)

Plaintiff’s

motion also requests that the Court strike John Doe from the
caption and discontinue the action against him without prejudice.
(Pl.’s Mot.)

Plaintiff alleges that defendant John Doe was not

served with the Summons and Complaint and is not a necessary party.
(Pl.’s Aff., Docket Entry 34, ¶ 10.)

As addressed infra, Plaintiff also requests that defendant John
Doe be stricken from the caption and its claims against him be
discontinued without prejudice. (Pl.’s Mot., Docket Entry 33.)
While the R&R does not expressly address Plaintiff’s request
with respect to defendant John Doe, the R&R recommends that
Plaintiff’s motion be granted in its entirety. (R&R at 3.)
1

2

On April 6, 2016, the undersigned referred Plaintiff’s
motion to Judge Lindsay for an R&R on whether the motion should be
granted.

(Docket Entry 50.)

On July 27, 2016, Judge Lindsay

issued her R&R recommending that Plaintiff’s motion be granted and
judgment be entered precluding Capital One from asserting its right
under its lien after the Notice of Pendency of this action is
filed.

(R&R, at 3.)
DISCUSSION
In reviewing an R&R, a district court “may accept,

reject,

or

modify,

recommendations

in

made

by

whole
the

or

in

part,

magistrate

the

findings

judge.”

28

and

U.S.C.

§ 636(b)(1)(C). If no timely objections have been made, the “court
need only satisfy itself that there is no clear error on the face
of the record.”

Urena v. New York, 160 F. Supp. 2d 606, 609-10

(S.D.N.Y. 2001) (internal quotation marks and citation omitted).
Objections were due within fourteen (14) days of service
of the R&R.

The time for filing objections has expired, and no

party has objected.

Accordingly, all objections are hereby deemed

to have been waived.
Upon careful review and consideration, the Court finds
Judge Lindsay’s R&R to be comprehensive, well-reasoned, and free
of clear error, and it ADOPTS the R&R in its entirety.

3

CONCLUSION
Judge Lindsay’s R&R (Docket Entry 52) is ADOPTED in its
entirety.
GRANTED.

Plaintiff’s motion for default (Docket Entry 33) is
Capital One is barred from asserting its right under its

lien after the Notice of Pendency of this action is filed, and
Plaintiff’s
prejudice.

claims

against

John

Doe

are

discontinued

without

The Clerk of the Court is directed to TERMINATE John

Doe as a defendant in this action.
Plaintiff is directed to serve Capital One with a copy
of this Memorandum and Order and file proof of service on ECF.

SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

August
29 , 2016
Central Islip, New York

4