CIT Bank, N.A. v. Ayers et al

Filing 74

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Accordingly, IT IS HEREBY ORDERED that plaintiff is awarded $17,090.00 in attorney's fees. IT IS FURTHER ORDERED that plaintiffs application for an award of $1,300.00 in anticipated fees is d enied without prejudice and with leave to renew upon the submission of the appropriate supporting documentation after such fees are actually incurred. IT IS FURTHER ORDERED that plaintiff shall serve a copy of this Order on defendants and file proof of service with the Court. Ordered by Judge Joseph F. Bianco on 1/3/2018. (Bollbach, Jean)

FILED

IN cu.:RK'S OFFICE
U.S. DISTRICT COURT E.D.N.Y.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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JAN 0~.2018

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LONG ISLAND OFFICE

CIT BANK, N.A.,
Plaintiff,

ORDER
CV 15-7256 (JFB) (SIL)
-against-

DANIELLE AYERS, a/k/a DANIELLE M.
AYERS, and M.D.R.,
Defendants.

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JOSEPH F. BIANCO, District Judge:

On March 27, 2017, this Court entered default judgment against defendants Danielle Ayers,
a/k/a Danielle M. Ayers, and M.D.R. (together, "defendants") and referred the matter to Magistrate
Judge Steven I. Locke for a Report and Recommendation to address the issue of damages and other
relief sought by plaintiff. (ECF No. 57.) On July 18, 2017, Judge Locke issued a Report and
Recommendation (the "initial R&R"), recommending that plaintiff be awarded $545,290.91 in
damages, as well as an additional $2,531.51 in statutory fees and costs. (ECF No. 63.) The initial
R&R also recommended that plaintiffs motion for attorney's fees be denied, but that plaintiff be
granted leave to resubmit an affidavit providing the details necessary for a calculation of such fees.
(Id. at 12.)

On August 18, 2017, plaintiff renewed its application for attorney's fees. (ECF No. 66.) On
August 24, 2017, the Court adopted the initial R&R in its entirety (ECF No. 68), and on August 31,
2017, the Court referred the matter to Judge Locke for a Report and Recommendation to address the
issue of attorney's fees (ECF No. 70). On December 5, 2017, Judge Locke issued another Report and
Recommendation (the "R&R"), recommending that plaintiff's motion for attorney's fees be granted in
part and denied in part. (ECF No. 72.) Specifically, Judge Locke recommended that plaintiff be
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awarded $17,090.00 in attorney's fees, and that plaintiffs application for an award of $1,300.00 in
anticipated fees be denied without prejudice and with leave to renew upon the submission of the
appropriate supporting documentation after such fees are actually incurred. (Id. at 13.) A copy of the
R&R was served on defendants on Oecember 5, 2017. (See ECF No. 73.) Judge Locke directed that
any objections to the R&R be filed within fourteen (14) days of receipt of the R&R. (ECF No. 72 at
13.) The deadline has since passed, and no party has filed an objection.
Where there are no objections, the Court may adopt a report and recommendation without de

novo review. See Thomas v. Arn, 474 U.S. 140, 150 (1985) ("It does not appear that Congress intended
to require district court review of a magistrate's factual or legal conclusions, under a de novo or any
other standard, when neither party objects to those findings."); see also 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."); cf 28 U.S.C. § 636(b)(l)(c) and Fed. R. Civ. P. 72(b)(3)
(requiring de novo review after objections). However, because the failure to file timely objections is
not jurisdictional, a district judge may still excuse the failure to object in a timely manner and exercise
its discretion to decide the case on the merits to, for example, prevent plain error. See Cephas v. Nash,
328 F.3d 98, 107 (2d Cir. 2003) ("[B]ecause the waiver rule is non jurisdictional, we 'may excuse the
default in the interests of justice."' (quoting Thomas, 474 U.S. at 155)).
Although no party has objected. to the R&R, the Court has conducted a de novo review of the
R&R in an abundance of caution. Having conducted a review of the full record and the applicable law,
and having reviewed the R&R de novo, the Court adopts the findings and recommendations contained
in the well-reasoned and thorough R&R in their entirety.
Accordingly, IT IS HEREBY ORDERED that plaintiff is awarded $17,090.00 in attorney's
fees. IT IS FURTHER ORDERED that plaintifrs application for an award of$1,300.00 in anticipated

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fees is denied without prejudice and with leave to renew upon the submission of the appropriate
supporting documentation after such fees are actually incurred. IT IS FURTHER ORDERED that
plaintiff shall serve a copy of this Order on defendants and file proof of service with the Court.

SO ORDERED.

JO EPH F. BIANCO
ITED STATES DISTRI
Dated:

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Januaryi_, 2018
Central Islip, New York

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