Empire Community Development, LLC v. Larsen et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
Empire Community Development, LLC,
Plaintiff,
-v-
Brian K. Larsen, Kimberly A. Larsen a/k/a Kimberly A.
Kaiser-Larsen, and Suffolk County Traffic & Parking
Violations Authority,
Defendants.
2:23-cv-5896
(NJC) (LGD)
MEMORANDUM AND ORDER
NUSRAT J. CHOUDHURY, United States District Judge:
Plaintiff Empire Community Development, LLC (“Plaintiff”) filed this diversity action
against Defendants Brian K. Larsen, Kimberly A. Larsen, also known as Kimberly A. Kaiser-
Larsen (“Kimberly Larsen,” collectively the “Defendants”), and the Suffolk County Traffic &
Parking Violations Agency (“the SCTPVA”), seeking a judgment of foreclosure and sale of real
property located at 16 Thomas Street, Coram, NY 11727 (the “Property”) pursuant to New York
Real Property Law § 1301, et seq. (Compl., ECF No. 1.) The SCTPVA appeared in this action
and was subsequently dismissed following the filing of a stipulation of dismissal by Plaintiff and
the SCTPVA. (ECF No. 18; Elec. Order, Mar. 26, 2024.)
Before the Court is Magistrate Judge Lee G. Dunst’s oral report and recommendation
(“September 2025 R&R”) (Not. Elec. Filing, Sept. 25, 2025), recommending that the Motion to
Vacate filed by Defendant Brian K. Larsen (ECF No. 33) be deemed both withdrawn and
denied.
Case 2:23-cv-05896-NJC-LGD Document 54 Filed 11/20/25 Page 1 of 7 PageID #:
<pageID>

2
PROCEDURAL HISTORY
On February 20, 2024, Plaintiff filed its First Motion for Default Judgment against
Defendants (“First Default Judgment Motion”), which sought a judgment of foreclosure and sale
of the Property. (First Default Mot., ECF No. 19.) On March 8, 2024, the Court referred the First
Default Judgment Motion to Judge Dunst for a written report and recommendation. (Elec. Order,
Mar. 8, 2024.) On April 23, 2024, Judge Dunst issued a report and recommendation (April 2024
R&R, ECF No. 20), recommending that the motion “be granted in part as to liability and be
denied without prejudice as to foreclosure and sale, damages and costs, and appointment of a
referee.” (Id. at 1.) The Court adopted the April 2024 R&R in its entirety and gave Plaintiff
another opportunity to “file a renewed Motion for Default Judgment addressing the deficiencies
discussed in the [April 2024] R&R.” (ECF No. 21 at 2.)
On July 31, 2024, the Court referred the forthcoming default judgment motion to Judge
Dunst for a written report and recommendation. (Elec. Order, July 31, 2024.) On August 28,
2024. Plaintiff filed a Second Motion for Default Judgment (“Second Default Judgment
Motion”). (Second Default Mot., ECF No. 24.) On October 24, 2024, Judge Dunst issued a
written report and recommendation (October 2024 R&R, ECF No. 25), recommending a grant of
the Second Default Judgment Motion, that Plaintiff be awarded $447,036.67 in damages, and the
appointment of a referee for the sale of the Property through public auction. (Id. at 7.)
On January 29, 2025, the Court adopted the October 2024 R&R in its entirety and
granted the Second Default Judgment Motion. (Mem. & Order, ECF No. 29.) On January 31,
2025, the undersigned ordered a Judgment of Foreclosure and Sale. (ECF No. 31.)
On May 21, 2025, Defendant Brian K. Larsen, acting pro se, appeared in this action and
filed a Motion to Vacate the Judgment of Foreclosure and Sale (“Motion to Vacate”). (Mot.
Case 2:23-cv-05896-NJC-LGD Document 54 Filed 11/20/25 Page 2 of 7 PageID #:
<pageID>

3
Vacate, ECF No. 33.) On May 24, 2025, the Court referred the Motion to Vacate to Judge Dunst
for a written report and recommendation. (Elec. Order, May 24, 2025.)
On May 27, 2025, Judge Dunst issued an order, setting a briefing schedule for the Motion
to Vacate and staying this Court’s Judgment of Foreclosure and Sale pending resolution of the
motion in light of the filing of a bankruptcy petition by Defendant Brian K. Larsen on April 7,
2025. (Elec. Order, May 27, 2025.) On June 18, 2025, Plaintiff filed its opposition to the Motion
to Vacate. (Opp’n, ECF No. 38.) Defendant Brian K. Larsen did not file a reply.
The Clerk of Court mailed both this Court’s May 24, 2025 Order referring the Motion to
Vacate to Judge Dunst and Judge Dunst’s May 27, 2025 Order setting a briefing schedule and
staying this Court’s Judgment of Foreclosure and Sale to Defendant Brian J. Larsen at his
address of record, which is the same address stated in the Motion to Vacate. (ECF Nos. 39–40.)
The mail was returned as undeliverable. (Id.)
On July 23, 2025, Judge Dunst ordered Defendants, including Defendant Brian K.
Larsen, to advise the Court by August 22, 2025 “whether they are still pursuing the pending
Motion to Vacate.” (Elec. Order, July 23, 2025.) He also ordered Plaintiff to serve the July 23,
2025 Order on Defendants by August 1, 2025 “via any and all mailing addresses” and “any and
all email addresses” for Defendants known to Plaintiff and to “file evidence of service by”
August 8, 2025. (Id.) On July 24, 2025, Plaintiff filed proof of mailing and a letter reporting that
Defendant Brian K. Larsen’s bankruptcy case had been dismissed on June 6, 2025. (ECF No.
41.)
On August 29, 2025, Judge Dunst found that “Defendants have failed to advise the Court
whether they are still pursuing the pending motion,” but nevertheless provided Defendants an
additional opportunity to advise the Court, by September 12, 2025, “whether they are still
pursuing the pending Motion to Vacate” and ordered the parties to appear for a telephone
Case 2:23-cv-05896-NJC-LGD Document 54 Filed 11/20/25 Page 3 of 7 PageID #:
<pageID>

4
conference on September 15, 2025. (Elec. Order, Aug. 29, 2025.) He also ordered Plaintiff to
serve the August 29, 2025 Order on Defendants and file proof of service by September 3, 2025.
(Id.) On September 4, 2025, Plaintiff filed the affidavit of Plaintiff’s counsel, Nina Clancy
(“Clancy”), in which Clancy attests to sending Defendants the August 29, 2025 Order by first
class mail on September 3, 2025. (ECF No. 43.)
Defendant Brian K. Larsen failed to appear at the September 15, 2025 status conference
before Judge Dunst. (Min. Entry, Sept. 15, 2025.) In a Minute Entry regarding the conference,
Judge Dunst set forth what he called a “recommendation,” recommending that the Court deem
the Motion to Vacate “withdrawn and denied” and setting a deadline for Defendants to object
“within ten days.” (Id. (emphasis added).) He also ordered Plaintiff to serve the Minute Entry on
Defendants and to file proof of service. (Id.) On September 17, 2025, Plaintiff filed another
affidavit from Clancy, in which Clancy attests to sending Defendants the Minute Entry by first
class mail on September 17, 2025. (ECF No. 47.)
On September 24, 2025, Judge Dunst issued a docket entry, dated September 15, 2025
and titled “ORAL REPORT AND RECOMMENDATIONS” (“September 2025 R&R”), which
restated the information in the Minute Entry R&R and indicated that any objections to the
recommendation were due by September 29, 2025. (Not. Elec. Filing, Sept. 24, 2025.) On
September 25, 2025, Judge Dunst modified the September 2025 R&R by extending the objection
deadline, providing the parties until October 10, 2025 to file objections to his recommendation
that the Motion to Vacate be deemed withdrawn and denied. (Not. Elec. Filing, Sept. 25, 2025.)
The Clerk of Court mailed both the Minute Entry and the September 2025 R&R to
Defendant Brian K. Laren at his address of record, but both mailings were returned to the Court
as undeliverable. (ECF Nos. 48, 50.)
Case 2:23-cv-05896-NJC-LGD Document 54 Filed 11/20/25 Page 4 of 7 PageID #:
<pageID>

5
On October 7, 2025, Plaintiff filed a letter “advis[ing] that the deadline for objections to
Magistrate Judge Dunst’s September 15, 2025 Report and Recommendations (ECF Minute Entry
dated 9/15/2025) has now passed, and no objections have been filed by Defendant Brian
Larsen . . . .” (ECF No. 49.) Plaintiff “requests that the Court adopt the recommendation in full
and lift the stay entered on May 27, 2025, so that Plaintiff may proceed with enforcement of the
Judgment of Foreclosure and Sale (ECF No. 31).” (Id.)
On October 14, 2025, this Court issued an Order identifying certain procedural
deficiencies with the Minute Entry and the September 2025 R&R and stating that “it is not clear
that the time period for the parties to file objections to Magistrate Judge Dunst’s [Minute Entry
or September R&R] has elapsed.” (Order, ECF No. 51 at 5.) The Court found that: (1) the
Minute Entry and September 2025 R&R had set forth objection deadlines that failed to comply
with the statutory requirements of 28 U.S.C. § 636(b)(1) and Rule 72(a) of the Federal Rules of
Civil Procedure; and (2) that Plaintiff had not filed proof of service of the September 2025 R&R,
as required by Judge Dunst’s Order (see September 2025 R&R, Elec. Order, Sept. 15, 2025).
(Order, ECF No. 51 at 5–6.) The Court then ordered Plaintiff to file proof of service of the
September 2025 R&R upon Defendants to “permit the Court to determine whether Defendants
were afforded notice of the [September 2025 R&R] and provided fourteen days to file any
objections.” (Id. at 6.)
On October 14, 2025, Plaintiff filed another affidavit of service from Nina Clancy, who
attests that on that date, Defendants were served by first-class mail with copies of (1) the
September 2025 R&R, and (2) this Court’s October 14, 2025 Order. (ECF No. 52.) Therefore,
the deadline for Defendants to object to the September 2025 R&R was October 28, 2025. No
objections were filed.
Case 2:23-cv-05896-NJC-LGD Document 54 Filed 11/20/25 Page 5 of 7 PageID #:
<pageID>

6
Additionally, the Clerk of Court mailed the Court’s October 14, 2025 Order to Defendant
Brian K. Larsen at his address of record, but the mailing was again returned to the Court as
undeliverable. (ECF No. 53.)
LEGAL STANDARDS
In reviewing a report and recommendation, the 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). If no objections are filed, a district court reviews a report and recommendation for
clear error. Nambiar v. Cent. Orthopedic Grp., LLP, No. 24-1103, ___ F.4th ___, 2025 WL
3007285, at *2 (2d Cir. Oct. 28, 2025); In re GEICO Customer Data Breach Litig., 691 F. Supp.
3d 624, 628 (E.D.N.Y. 2023) (citing Galvez v. Aspen Corp., 967 F. Supp. 2d 615, 617 (E.D.N.Y.
2013)).
Now that the Court has confirmed that sufficient notice was provided to the Defendants
and that the objection deadline has passed without any objections, the Court will review the
September 2025 R&R for clear error.
DISCUSSION
Having reviewed the Motion to Vacate, the docket history, the September 2025 R&R and
all preceding R&Rs, and the applicable law, I adopt the September 2025 R&R in part.
Specifically, in light of Defendant Larsen’s failure to respond to the Judge Dunst’s orders
concerning the Motion to Vacate and failure to appear at the September 15, 2025 conference
concerning the motion, the Motion to Vacate is hereby dismissed as withdrawn. I do not adopt
the September 2025 R&R’s recommendation to deny the Motion to Vacate because a motion
cannot be simultaneously deemed withdrawn and denied on the merits.
Because the motion to vacate is withdrawn, this Court vacates Judge Dunst’s stay of the
Judgment of Foreclosure and Sale. Accordingly, the January 31, 2025 Judgment of Foreclosure
Case 2:23-cv-05896-NJC-LGD Document 54 Filed 11/20/25 Page 6 of 7 PageID #:
<pageID>

7
and Sale (ECF No. 31) is now again in force. This case has been marked closed on the docket
and shall remain so.
Dated: Central Islip, New York
November 20, 2025
/s/ Nusrat J. Choudhury
NUSRAT J. CHOUDHURY
United States District Judge
Case 2:23-cv-05896-NJC-LGD Document 54 Filed 11/20/25 Page 7 of 7 PageID #:
<pageID>