Government Employees Insurance Co. et al v. Simakovsky, D.C. et al

Filing 49

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Upon a careful review of the Report and Recommendation, the plaintiffs' motion for default judgment, and the supporting evidence, and considering that defendant Alexander Sandler has failed to appear o r object to any of Judge Gold's well-grounded recommendations, the court finds no clear error in Judge Gold's Report and Recommendation and hereby affirms and adopts the Report and Recommendation as to Alexander Sandler. Accordingly, plain tiffs' motion for default judgment is granted with respect to defendant Sandler, and judgment shall be entered against Sandler in the amount of $4,189,026.93. Plaintiffs are directed to serve a copy of this Order and Judgment on defendant Sandler at his last known address, and file proof of service on ECF within three days of the date of this Order. The Clerk of the Court is respectfully directed to enter judgment in the amount of $4,189,026.93 against defendant Alexander Sandler. Ordered by Judge Kiyo A. Matsumoto on 10/5/2015. (Tsay, Stephanie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------GOVERNMENT EMPLOYEES INSURANCE CO.,
et al.,
Plaintiffs,
-against-

LEONID SIMAKOVSKY, D.C., PUGLSEY
CHIROPRACTIC, P.L.L.C., CANON
CHIROPRACTIC CARE, P.C., ANDREY
ANIKEYEV, ALEXANDER SANDLER, and JOHN
DOE DEFENDANTS 1-5,
Defendants.
-------------------------------------MATSUMOTO, United States District Judge:

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: ORDER ADOPTING REPORT
: AND RECOMMENDATION
:
: No. 14 Civ. 3775 (KAM)(SMG)
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On June 17, 2014, plaintiffs Government Employees
Insurance Co., GEICO Indemnity Co., GEICO General Insurance
Company, and GEICO Casualty Co. (collectively, “GEICO” or
“plaintiffs”) commenced this action against defendants Leonid
Simakovsky, D.C. (“Simakovsky”), Pugsley Chiropractic, P.L.L.C.,
and Canon Chiropractic Care, P.C. (collectively, the “PC
Defendants”), Andrey Anikeyev and Alendander Sandler
(collectively, the “Management Defendants”), and John Doe
Defendants 1-5.
6/17/14.)

(ECF No. 1, Complaint (“Compl.”) dated

Plaintiffs allege that defendants engaged in a scheme

to submit fraudulent claims for reimbursement pursuant to New
York’s “no fault” law, which allows medical service providers to
obtain payment from insurers for services provided to insureds

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who are injured in motor vehicle accidents.
Compl.)

(See generally

The summons and complaint were served upon defendant

Sandler on July 23, 2014.

(ECF No. 18, Affidavit of Service

dated 7/29/14.)
The Clerk of Court entered a certificate of default
against defendants Simakovsky and the P.C. defendants on July
28, 2014, and against the Management defendants on October 21,
2014, because the defendants had failed to appear or otherwise
defend this action after being served with process.

(ECF Nos.

15-17, Clerk’s Entry of Default Against Simakovsky and P.C.
defendants, dated 7/28/14; ECF No. 21, Request for Certificate
of Default Against Alexander Sandler; ECF Nos. 23-24, Clerk’s
Entry of Default against Anikeyev and Sandler, dated 10/21/14.)
Plaintiff moved for entry of default judgment against all
defendants on February 6, 2015 and filed an affidavit of service
on February 10, 2015.

(ECF Nos. 25, Notice of Motion for

Default Judgment, 2/6/15; 28, Affidavit of Service, dated
2/10/15.)

On April 23, 2015, the court referred the motion for

default judgment to Magistrate Judge Steven M. Gold for a Report
and Recommendation.

(See Order Referring Motion, 4/23/15.)

On July 7, 2015, plaintiffs and defendants Simakovsky
and the PC defendants filed a stipulation of dismissal without
prejudice as to the claims against Simakovsky, Canon
Chiropractic Care, P.C., and Pugsley Chiropractic P.L.L.C.
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(ECF

No. 39, Stipulation of Dismissal as to Leonid Simakovsky, D.C.,
Canon Chiropractic Care, P.C., and Pugsley Chiropractic
P.L.L.C.)
date.

The court so-ordered the stipulation on the same

(Order, dated 7/7/15.)

On August 21, 2015, the plaintiff

re-filed their motion for default judgment against the remaining
Management defendants, Andrey Anikeyev and Alexander Sandler.
(ECF No. 40, Notice of Motion for Default Judgment, dated
8/21/15.)

The renewed motion for default judgment against

Anikeyev and Sandler was served upon Sandler on August 18, 2015
at his last known address.

(ECF No. 40-2, Affidavit of Ryan

Goldberg in Support of Default Judgment, ¶ 18.)
On September 6, 2015, Magistrate Judge Gold issued a
Report and Recommendation (ECF No. 22, Report and Recommendation
(“R & R”) dated 9/6/15), in which he recommended that the court
grant plaintiffs’ motion for default judgment and find the
Management defendants liable on plaintiffs’ claims under RICO
and for common law fraud and unjust enrichment.1

(R & R at 15.)

Further, the Report and Recommendation recommended that the
court award damages in the sum of $1,296,342.31 against the
Management defendants, and recommended that the damages be

1

As noted in the Report and Recommendation, plaintiffs filed a new motion for
default judgment on August 21, 2015, with supporting documentation, however
the new motion and memorandum are identical in all respects to plaintiffs’
earlier submissions and differ only in that the new submissions seek default
against only the non-settling Management defendants, Anikeyev and Sandler.
(R & R at 2 n.1; ECF Nos. 40, Notice of Motion for Default Judgment Against
Andrey Anikeyev and Alexander Sandler; 40-2, Declaration of Ryan Goldberg in
Support of Motion for Default (certifying service of renewed motion papers on
defendants Anikeyev and Sandler on 9/18/15).)

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trebled for a total judgment of $4,189,026.93 to be entered
jointly and severally against each defendant.2

(R & R at 16-17.)

The Report and Recommendation recommended that the amount to be
obtained by plaintiffs in settlement with Simakovsky and the PC
defendants should not be taken into account and “set off” when
calculating the damages assessed against the Management
defendants, relying on the general rule that a defendant in
default “may not invoke the benefits of the set-off rule.”
(R & R at 18.)

Finally, the Report and Recommendation

recommended that fees and costs not be included in the court’s
final judgment, and that the court should decline to award
damages on plaintiffs’ state common law fraud claims.

(R & R at

17.)
Notice of the Report and Recommendation was sent via
first class mail to Alexander Sandler at 2 Mohawk Court,
Brunswick, New Jersey 08816.

(ECF No. 43, Affidavit of Service

for Alexander Sandler on September 6, 2015.)

As explicitly

noted at the end of the Report and Recommendation, any
objections to the Report and Recommendation were to be filed

2

Although the Report and Recommendation recommended that judgment be entered
jointly and severally against defendants Anikeyev and Sandler, the court has
deferred ruling on the motion for default judgment with respect to defendant
Anikeyev, while Anikeyev’s motion to vacate the certificate of judgment
remains pending. (See ECF Nos. 4, Motion for Pre-Motion Conference re
Proposed Motion to Vacate Certificate of Default; Minute Entry dated 9/21/15
(noting that defendant’s motion to vacate the certificate of default shall be
fully briefed by October 30, 2015).) Accordingly, judgment at this time
shall be entered only against defendant Sandler, who, to date, has neither
appeared nor filed any objections to the Report and Recommendation.

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within fourteen (14) days of service of the Report and
Recommendation, and no later than September 24, 2015.
5; ECF No. 42.)

(R & R at

The statutory period for filing objections has

expired, and no objections Judge Gold’s Report and
Recommendation have been filed by defendant Alexander Sandler.
(See generally Docket No. 14-CV-3775.)
In reviewing a Report and Recommendation, the district
court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”
U.S.C. § 636(b)(1)(C).

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Where no objection to the Report and

Recommendation has been filed, the district court “need only
satisfy itself that 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) (quoting Nelson v. Smith, 618 F. Supp. 1186,
1189 (S.D.N.Y. 1985).
Upon a careful review of the Report and
Recommendation, the plaintiffs’ motion for default judgment, and
the supporting evidence, and considering that defendant Sandler
has failed to appear or object to any of Judge Gold’s wellgrounded recommendations, the court finds no clear error in
Judge Gold’s Report and Recommendation and hereby affirms and
adopts the Report and Recommendation as to Alexander Sandler.
In adopting the Report and Recommendation, the court finds that
defendant Sandler violated Section 1962(c) of the RICO statute
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by participating in an enterprise engaged in a pattern of
racketeering activity that resulted in an injury to plaintiff.
Specifically, defendant Sandler participated in a scheme to
defraud plaintiffs by submitting fraudulent no-fault insurance
claims and extracting insurance payments from plaintiffs.

The

court further finds that defendant Sandler is liable for civil
RICO conspiracy and New York common law fraud and unjust
enrichment.
Accordingly, plaintiffs’ motion for default judgment is
granted with respect to defendant Sandler, and judgment shall be
entered against Sandler in the amount of $4,189,026.93.
Plaintiffs are directed to serve a copy of this Order and
Judgment on defendant Sandler at his last known address, and
file proof of service on ECF within three days of the date of
this Order.

The Clerk of the Court is respectfully directed to

enter judgment in the amount of $4,189,026.93 against defendant
Alexander Sandler.

SO ORDERED.

Dated:

October 5, 2015
Brooklyn, New York

____________/s/______________
Kiyo A. Matsumoto

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