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

Filing 62

ORDER ADOPTING REPORT AND RECOMMENDATION. For the reasons provided herein, Mr. Anikeyev's motion to vacate the entry of default is DENIED. The motion for entry of a default judgment is therefore granted with respect to Mr. Anikeyev, and judgment shall be entered against Mr. Anikeyev and Mr. Sandler, jointly and severally, in the amount of $4,189,026.93, plus post-judgment interest as prescribed by law. See 28 U.S.C. § 1961. The Clerk of Court is directed to enter judgment and close this case. Ordered by Judge Kiyo A. Matsumoto on 3/31/2016. (Jacobson, Jonathan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------x
GOVERNMENT EMPLOYEES INSURANCE
COMPANY ET AL.
Plaintiff,

MEMORANDUM & ORDER
14-cv-3775 (KAM) (SMG)

-againstANDREY ANIKEYEV
Defendant.
-----------------------------------x
MATSUMOTO, United States District Judge:
Plaintiffs Government Employees Insurance Co., GEICO
Indemnity Co., GEICO General Insurance Company, and GEICO Casualty
Co. (collectively, “GEICO” or “plaintiffs”) allege that Andrey
Anikeyev (“Mr. Anikeyev” or “defendant”) and other defendants
engaged in a scheme to submit fraudulent claims for reimbursement
under New York’s “no-fault” insurance law. After Mr. Anikeyev was
served with the summons and complaint on July 17, 2014 (ECF No.
11) and failed to answer or otherwise defend against the complaint,
a certificate of default was entered against him on October 21,
2014. (ECF No. 24.) Plaintiffs subsequently filed and served
defendants with a motion seeking entry of a default judgment on
February 10, 2015. (ECF No. 28.) Plaintiffs settled with several
defendants in July 2015, and then refiled and reserved their
motions

for

entry

of

a

default

judgment

against

remaining

defendants Mr. Anikeyev and Alexandler Sandler on August 18, 2015.
(ECF

No.

40-2.)

Magistrate

Judge

Gold

issued

a

report

and

recommendation on September 6, 2015, recommending that this court
grant the motion for default judgment against Mr. Anikeyev. (ECF
No. 42.) The report and recommendation was served on the defendants
on September 8, 2015. (ECF No. 43.) Mr. Anikeyev filed objections
to the report and recommendation on September 16, 2015 (ECF No.
46.) The court adopted the report and recommendation on October 5,
2015, only as to defendant Mr. Sandler, in light of Mr. Anikeyev’s
objections and stated intentions to move to vacate the entry of
default. (ECF No. 49.)
Mr. Anikeyev’s instant motion seeking to vacate the
certificate of default was brought nearly a year after the entry
of default. For the reasons set forth below, Mr. Anikeyev’s motion
to vacate the certificate of default is DENIED. The court also
adopts

the

aforementioned

report

and

recommendation

in

its

entirety and GRANTS plaintiffs’ motion for a default judgment
against Mr. Anikeyev.
BACKGROUND
The court assumes basic familiarity with the facts in
this action, which have been set out in prior opinions. (See ECF
Nos. 42, 49.) On March 15, 2013, Mr. Anikeyev pled guilty in the
U.S. District Court for the Southern District of New York to a
superseding information charging one count of conspiracy to commit
health care fraud and mail fraud. (See ECF No. 54, Ex. 2, Plea
Hearing Transcript (“Plea Tr.”) at 3, 15-16; ECF No. 54, Ex. 3,
2

Superseding Information.) At his plea hearing (there was no written
plea agreement), Mr. Anikeyev allocuted that between 2008 and 2012
he “submitt[ed] bills through mail to various insurance companies
for acupuncture services which I knew were false . . . . These
bills requested payment for health care services for time periods
in excess of the actual time period the patient spent with the
acupuncturist.” (Id. at 15-16.) Mr. Anikeyev was subsequently
sentenced to 42 months in prison, and ordered to pay over $4
million in restitution. (ECF No. 55, Ex. 7, Criminal Judgment
(“Judgment”).)
On

June

17,

2014,

while

Mr.

Anikeyev

was

still

incarcerated, GEICO filed a civil complaint in this action against
Leonid

Simakovsky,

Pugsley

Chiropractic

P.L.L.C.,

Canon

Chiropractic Care P.C., Mr. Anikeyev, Mr. Sandler, and five John
Doe defendants. (ECF No. 1, Complaint (“Compl.”).) Mr. Anikeyev
acknowledges that he was served with the summons and complaint by
prison authorities on July 17, 2014. (ECF No. 54, Affidavit of
Andrey Anikeyev (“Anikeyev Aff.”).) Plaintiffs asserted claims
under

the

Racketeer

Influenced

and

Corrupt

Organizations

Act

(“RICO”) as well as state law claims of common law fraud and unjust
enrichment. (Compl. at ¶¶ 124-77.)
None of the defendants timely answered the complaint,
though attorneys entered appearances for Mr. Simakovsky and the
two chiropractic entities. (ECF Nos. 19-20.) Between July and
3

October 2014, GEICO sought, and obtained, entries of default
against each named defendant. (ECF Nos. 12-17, 21-24.) The clerk
entered a certificate of default against Mr. Anikeyev on October
21, 2014. (ECF No. 24.) On February 6, 2015, GEICO moved for a
default

judgment

against

all

defendants,

and

submitted

a

memorandum as well as affidavits and declarations in support of
the motion. GEICO served defendant Anikeyev at his last known
address

in

New

Jersey.

(ECF

Nos.

25-30.)

GEICO’s

motion

was

referred to then-Chief Magistrate Judge Gold for a report and
recommendation.

On

stipulation

dismissal

chiropractic

of

July

entities

7,

2015,

as

to

after

GEICO

Mr.

reaching

filed

Simakovsky
a

a

voluntary

and

settlement

the

with

two

those

defendants. (ECF No. 39.) Mr. Anikeyev and Mr. Sandler, however,
had still failed to appear or otherwise defend against this action.
(ECF No. 42.) Accordingly, plaintiffs amended, and re-served and
re-filed, their motion for default judgment to address only Mr.
Anikeyev and Mr. Sandler. (ECF No. 40.)
On September 4, 2015, over a year after Mr. Anikeyev had
been served with the complaint, his attorney moved for admission
pro hac vice. (ECF No. 41.) Two days later, Magistrate Judge Gold
issued his report and recommendation recommending that judgment be
entered against Mr. Anikeyev and Mr. Sandler. (ECF No. 42.) On
September 14, 2015, Mr. Anikeyev filed a motion seeking a premotion conference to vacate the certificate of default and the
4

court thereafter set up a briefing schedule to address the motion
to vacate. (ECF No. 44; see also 9/21/15 docket entry.) Mr.
Anikeyev also filed objections to the report and recommendation on
September 16, 2015. (ECF No. 46.) On October 5, 2015, the court
adopted Magistrate Judge Gold’s report and recommendation as to
Sandler, but deferred ruling on Mr. Anikeyev’s objections to the
report and recommendation and on plaintiffs’ motion for default
judgment with respect to Mr. Anikeyev pending a determination
regarding Mr. Anikeyev’s motion to vacate the certificate of
default. (ECF No. 49.)
Mr. Anikeyev thereafter filed a memorandum in support of
his motion to vacate the certificate of default, plaintiffs opposed
the motion, and Mr. Anikeyev filed a reply. (ECF No. 54, Memorandum
in Support of Motion to Vacate Clerk’s Entry of Default (“Anikeyev
Mem.”); ECF No. 60, Memorandum in Opposition to Motion to Vacate
Clerk’s Entry of Default (“Pl. Opp’n.”); ECF No. 55, Reply in
Support of Motion to Vacate Clerk’s Entry of Default (“Anikeyev
Reply”).) Mr. Anikeyev and his attorney, Raymond Zuppa, have both
filed affidavits in support of Mr. Anikeyev’s motion to vacate.
(See Anikeyev Aff.; ECF No. 54, Affidavit of Raymond Zuppa (“Zuppa
Aff.”).)
I.

Motion to Vacate Certificate of Default
A.

Legal Standard

5

Where the clerk has entered a default but there is no
default judgment, the standards set forth in Fed. R. Civ. P. 55(c)
govern rather than Fed. R. Civ. P. 60(b), which provides the
standard for setting aside a default judgment. See Meehan v. Snow,
652 F.2d 274, 276 (2d Cir. 1981). Rule 55(c) provides that a court
“may set aside an entry of default for good cause.” Fed. R. Civ.
P. 55(c). In determining whether good cause has been shown, courts
consider “the willfulness of the default, the existence of a
meritorious defense, and the level of prejudice that the nondefaulting party may suffer should relief be granted.” Pecarsky v.
Galaxiworld.com Ltd., 249 F.3d 167, 171 (2d Cir. 2001); Brown v.
Baldwin

Square

LLC,

No.

14-CV-0551,

2015

WL

1014398,

at

*2

(E.D.N.Y. Mar. 9, 2015) (same). 1 Although there is a “strong
preference for resolving disputes on the merits,” the Second
Circuit has explained that “a decision whether to set aside a
default is a decision left to the sound discretion of the district
court because it is in the best position to assess the individual
circumstances of a given case and to evaluate the credibility and

1 The court notes that some of the cases cited in this opinion involve the
application of Fed. R. Civ. P. 60(b). The standards are sufficiently similar,
however, that courts often look to Rule 60(b) decisions in deciding Rule 55(c)
cases and vice versa. See Bricklayers & Allied Craftworkers v. Moulton Masonry
& Const., LLC, 779 F.3d 182, 186 n.1 (2d Cir. 2015) (recognizing that some
although “cases cited in this opinion address the standard for vacating a
default judgment under Rule 60(b) of the Federal Rules of Civil Procedure rather
than the standard for voiding an entry of default under Rule 55(c), there is no
practical difference on this appeal”); Am. Alliance Ins. Co. v. Eagle Ins. Co.,
92 F.3d 57, 59 (2d Cir. 1996) (relying on Rule 55(c) criteria in Rule 60(b)
decision).

6

good faith of the parties.” McLean v. Wayside Outreach Dev. Inc.,
624 F. App’x 44, 45 (2d Cir. 2015) (internal quotation marks and
citations omitted).
B.

Analysis
The court turns next to the parties’ disputes regarding

application of the three relevant factors. Mr. Anikeyev argues
that: (1) his incarceration and good faith belief that his attorney
was handling this litigation show his default was not willful
(Anikeyev Mem. at 11-17; Anikeyev Reply at 6-9); (2) he has a
meritorious defense because he pleaded guilty to fraud involving
acupuncture and not chiropractic entities, as alleged in this
action (Anikeyev Mem. at 17-20; Anikeyev Reply at 9-13); and (3)
plaintiffs will suffer no meaningful prejudice from the delay
because their case is likely to be built on easily available and
accessible documents (Anikeyev Mem. at 20; Anikeyev Reply at 13).
Plaintiffs respond that: (1) Mr. Anikeyev’s default was
willful and egregious because his imprisonment does not relieve
him of the obligation to respond to a federal civil complaint (Pl.
Opp’n at 7-11); (2) Mr. Anikeyev’s proffered defense is composed
of conclusory denials of allegations that fail to qualify as a
meritorious defense (id. at 11-16); and (3) plaintiffs would suffer
prejudice because evidence will be lost or has become stale, Mr.
Anikeyev could have concealed assets, and plaintiffs would have
handled

the

settlement

with

Mr.
7

Anikeyev’s

co-defendants

differently had Mr. Anikeyev not been in default for nearly nine
months by the time of the settlements (id. at 16-20).
Willfulness
In the context of an entry of a certificate of default,
willfulness refers to “conduct that is more than merely negligent
or careless, but is instead egregious and . . . not satisfactorily
explained.” Bricklayers & Allied Craftworkers v. Moulton Masonry
& Const., LLC, 779 F.3d 182, 186 (2d Cir. 2015) (internal quotation
marks and citation omitted) (finding willfulness where “defendants
failed to file a responsive pleading for over nine months after
the receipt of the summons and complaint” despite awareness that
the legal action was pending); Dow Chem. Pacific Ltd. v. Rascator
Maritime S.A., 782 F.2d 329 (2d Cir. 1986) (upholding district
court’s refusal to vacate where motion to vacate entry of default
was not made until seven months after default). Additionally,
“where the attorney’s conduct has been found to be willful, the
willfulness will be imputed to the party himself where he makes no
showing that he has made any attempt to monitor counsel’s handling
of the lawsuit.” S.E.C. v. McNulty, 137 F.3d 732, 740 (2d Cir.
1998); Finkel v. Hall-Mark Elec. Supplies Corp., No. 07-CV-2376,
2011 WL 2847407, at *3 (E.D.N.Y. July 13, 2011) (“An attorney’s
conduct in defaulting is imputed to her clients.”). Of the three
criteria to be evaluated in the context of a default, “willfulness
is preeminent, and a willful default will not normally be set
8

aside.” Pennacchio v. Powers, No. 05-CV-985, 2010 WL 3767141, at
*3 (E.D.N.Y. Aug. 9, 2010) (internal quotation marks and citation
omitted) report and recommendation adopted, 2010 WL 3744052, at *3
(E.D.N.Y. Sept. 20, 2010); Mun. Credit Union v. Queens Auto Mall,
Inc., No. 14-CV-4895, 2014 WL 6870960, at *1 (E.D.N.Y. Dec. 5,
2014) (“Usually, the factor that carries the most weight is whether
the default was willful.” (citing De Curtis v. Ferrandina, 529 F.
App’x 85, 86 (2d Cir. 2013)).
Mr. Anikeyev admits that he was served with the summons
and complaint in this action while he was incarcerated on July 17,
2014. (Anikeyev Aff. at ¶ 3.) He claims that he contacted his wife
shortly thereafter — “probably the same day” — and told her to
“send the complaint to Raymond Zuppa.” (Id. at ¶¶ 6-7.) Mr. Zuppa
represented Mr. Anikeyev in multiple other civil actions (Zuppa
Aff. at ¶ 4; Anikeyev Aff. at ¶ 7), and Mr. Zuppa characterizes
his relationship to Mr. Anikeyev as “akin to in-house counsel.”
(Anikeyev Reply at 7.) Mr. Anikeyev also states that he had a
“strict limit of 300 minutes per month of phone usage” and, because
he had a large family with whom he wanted to stay in contact, he
had no opportunities to speak with Mr. Zuppa. (Anikeyev Aff. at
¶ 8.) Mr. Anikeyev does not explain why he could not have mailed
the summons and complaint to Mr. Zuppa himself. Nor does Mr.
Anikeyev state that he followed up with his wife or Mr. Zuppa after
he was served with the summons and complaint.
9

The clerk of court entered the certificate of default on
October 21, 2014. (ECF No. 24.) Mr. Anikeyev was released to a
halfway house on July 21, 2015. (Anikeyev Aff. at ¶ 10.) At the
halfway house, he was permitted to spend weekends at home and use
his cell phone while outside the halfway house. (Id. at ¶¶ 10-11.)
On August 26, 2015, Mr. Anikeyev’s wife contacted Mr. Anikeyev
after she received a notice of GEICO’s motion to enter default
judgment in this action. 2 (Id. at ¶ 12.) Mr. Anikeyev then texted
Mr. Zuppa to alert him about the default judgment. (Id.) Mr.
Anikeyev spoke with Mr. Zuppa by phone “[a] few days later”
inquiring about the specifics of this action. (Id. at ¶ 13.) The
phone call was the first communication (besides the text message
sent by Mr. Anikeyev) between Mr. Anikeyev and Mr. Zuppa regarding
this action, and the first time they had communicated since before
Mr. Anikeyev was incarcerated. (Id. at ¶¶ 9, 12-13; Zuppa Aff. at
¶ 18, 22.) After conducting a diligent search and inquiry, Mr.
Zuppa avers that neither he nor anyone in his office ever received
a copy of the summons or complaint and he had no idea he was
representing Mr. Anikeyev in this action. He had not been requested
to represent Mr. Anikeyev in this action, and had not received any

2 Despite declarations of service on Mr. Anikeyev at his last known address
signed by plaintiffs’ counsel regarding service of documents on Mr. Anikeyev
before the appearance of his counsel, Mr. Anikeyev fails to explain whether his
wife received any other documents relating to this action besides the amended
motion for default judgment served and filed on August 18, 2015. She has not
filed an affidavit.

10

fees for any services. (Zuppa Aff. at ¶¶ 18-26.) On September 4,
2015, Mr. Zuppa moved for admission pro hac vice in this action.
(ECF No. 41.)
As a preliminary matter, the Second Circuit has rejected
the notion that an incarcerated defendant in a civil action can
use his incarceration as an excuse to vacate a default. See Doe v.
Constant, 354 F. App’x 543, 546 (2d Cir. 2009) (rejecting a
plaintiff’s argument that default judgment entered against him
should have been vacated under Fed. R. Civ. P. 60(b)(6) because
“he was incarcerated when the default judgment was entered”); see
also Goodrich v. WFS Fin., Inc., No. 06-CV-1435, 2008 U.S. Dist.
LEXIS 32163 (N.D.N.Y Apr. 18, 2008) (in Rule 55(c) context, finding
willful default where defendant, who claimed to be incarcerated at
the time he admittedly received the complaint, waited over a year
after filing of complaint to respond). 3 The court concludes that
Mr.

Anikeyev’s

incarceration

does

not

preclude

a

finding

of

willfulness.

3

See also Jones v. Phipps, 39 F.3d 158, 164 (7th Cir. 1994) (“Because
[defendant] chose to ignore this lawsuit despite the ability to attend
to its needs, she deserves to have her default judgment vacated only if
every incarcerated litigant who receives adequate notice of an impending
default judgment deserves to be excused from the obligations of
litigation — a holding which would tear Rule 60(b) relief from its roots
of ‘extraordinary relief,’ and one which we are simply unwilling to
accept.”).

11

Further,

the

circumstances

of

Mr.

Anikeyev’s

incarceration, rather than suggesting his lack of fault, highlight
the ease with which he could have arranged for the defense of this
action. First, Mr. Anikeyev had 300 minutes per month to speak on
the phone. Between the time the complaint was served in June 2014
and the time he was released to the halfway house in July 2015,
Mr. Anikeyev therefore had approximately 65 hours of time to
discuss this litigation on the phone. He never states that he
communicated about this action during his incarceration to anyone
but once with his wife, on the day he was served with the summons
and complaint. To the extent that Mr. Anikeyev claims his default
was not willful because his limited phone time precluded him from
communicating with anyone beyond his immediate family, the court
is therefore unpersuaded. Moreover, he offers no explanation as to
why he could not have mailed or emailed his attorney a copy of the
summons and complaint, and requested representation. Second, Mr.
Anikeyev’s argument that he lacked the time to communicate about
this action is further weakened by the fact that while serving his
prison term he could have communicated with his counsel. Even after
he was released to the halfway house, and could spend weekends at
home (and use his cellphone while outside the halfway house), he
took no action to contact his attorney about the pending lawsuit.
Even if it was reasonable for Mr. Anikeyev to believe
that Mr. Zuppa was defending him during his incarceration, he had
12

an independent obligation to monitor this litigation. See McNulty,
137 F.3d at 740 (imputing attorney’s actions to his defendantclient where defendant made “no showing that he has made any
attempt

to

monitor

counsel’s

handling

of

the

lawsuit”).

Mr.

Anikeyev’s inaction after his purported conversation with his wife
telling her to forward the complaint to Mr. Zuppa was “egregious
and . . .

not

satisfactorily

explained.”

Bricklayers

&

Allied

Craftworkers, 779 F.3d at 186. Between July 17, 2014, when he was
served with the complaint, and August 26, 2015, when Mr. Anikeyev’s
wife contacted him about receiving notice of GEICO’s second motion
seeking a default judgment, Mr. Anikeyev never once avers that he
had any discussion about this action with anyone. (Anikeyev Aff.
at ¶ 12.) Mr. Anikeyev’s behavior is completely unexplained, and
is especially egregious given Mr. Anikeyev’s experience with both
the criminal and civil justice system. (See Compl. at ¶¶ 38-53
(describing the criminal charges against Mr. Anikeyev as well as
multiple civil actions similar to the instant action in which Mr.
Anikeyev was a named defendant); Anikeyev Aff. at ¶ 7 (stating
that Mr. Anikeyev retained Mr. Zuppa for “two separate lawsuits”
before his incarceration).) Mr. Anikeyev could not reasonably
believe that over a year could pass in this action without any
need for him to participate in the litigation of this action. The
court therefore finds his default willful and egregious.
Meritorious Defense
13

“To show a meritorious defense, a defendant must present
evidence that would constitute a complete defense if proven at
trial.” Finkel, 2011 WL 2847407, at *4. A defense is meritorious
if

“it

is

good

at

law

so

as

to

give

the

factfinder

some

determination to make.” Am. Alliance Ins. Co. v. Eagle Ins. Co.,
92 F.3d 57, 61 (2d Cir. 1996). A “defendant must present more than
conclusory denials when attempting to show the existence of a
meritorious defense.” Pecarsky, 249 F.3d at 173; Bricklayers &
Allied Craftworkers, 779 F.3d at 187 (“Although in an answer
general denials normally are enough to raise a meritorious defense,
the moving party on a motion to reopen the default must support
its

general

denials

with

some

underlying

facts.”

(internal

quotation marks and citation omitted)).
Mr. Anikeyev spends nearly half of his briefing in
support

of

his

motion

vigorously

arguing

that

GEICO

misrepresented, in the instant complaint, the nature of his guilty
plea in the Southern District of New York. Mr. Anikeyev contends
that his plea was only to a conspiracy to commit health care and
mail fraud by submitting bills for acupuncture services, and had
nothing to do with the fraud related to chiropractic services at
issue in this action. He is correct about the acupuncture-specific
character of his plea, though GIEOC has not misrepresented his
plea or the nature of the charge. (See Plea Tr. at 15-16 (admitting
that between 2008 and 2012 Mr. Anikeyev “submitt[ed] bills through
14

mail to various insurance companies for acupuncture services which
[he] knew were false . . . . These bills requested payments for
health care services for time periods in excess of the actual time
period the patient spent with the acupuncturist.”).)
Although GEICO broadly characterizes the plea at the
outset of its complaint in this action (Compl. at ¶¶ 2, 38-46),
GEICO

clarifies

that

Mr.

Anikeyev

allocuted

only

to

the

acupuncture-related fraud. (Id. at ¶ 64 (“Despite not being a
licensed medical professional, Anikeyev is no stranger to this
type of manipulation of treatment protocols. For example, as
admitted in his allocution, Anikeyev required various acupuncture
professional corporations that he illegally controlled to submit
fraudulent billing for services he knew were not rendered.”); see
also id. at ¶ 44 (discussing funds seized from Mr. Anikeyev’s
acupuncture corporations).) GEICO therefore did not misrepresent
the allocution. 4
Beyond nitpicking the plaintiffs’ 46-page complaint and
attacking plaintiffs’ counsel, however, Mr. Anikeyev offers little
in the way of a meritorious defense. Mr. Anikeyev’s affidavit boils
down to six primary contentions: (1) he has known Mr. Simakovsky,

4 It does appear that GEICO incorrectly stated in its complaint that Mr. Anikeyev
admitted he was not a “prevailing party” with respect to “other counts against
him.” (Compl. at ¶ 43.) The purported “prevailing party” admission does not
appear in the documents cited in the complaint. The superseding information,
however, only includes the one count to which Mr. Anikeyev pled guilty. (ECF
No. 54, Ex. 3, Superseding Information.)

15

the purported “paper owner” of the chiropractic entities in this
action, for 15 years; (2) Mr. Simakovsky shared office space with
Mr.

Anikeyev’s

wife’s

acupuncture

facility;

(3)

Mr.

Anikeyev

permitted Mr. Simakovsky to use Mr. Anikeyev’s P.O. box because
Mr.

Simakovsky

was

concerned

that

the

billing

company

Mr.

Simakovsky used for his chiropractic businesses was stealing from
Mr. Simakovsky; (4) Mr. Anikeyev thereafter steered Mr. Simakovsky
to

Mr.

Anikeyev’s

Anikeyev’s

only

brother-in-law’s

association

with

billing

his

company;

brother-in-law’s

(5)

Mr.

billing

company was that he occasionally earned some money from the company
for “client referrals and litigation support”; and (6) Mr. Anikeyev
“did not handle any chiropractic billing for Lenny Simakovsky or
any professional corporation owned by Simakovsky.” (Anikeyev Aff.
at ¶¶ 24-28.)
The court finds that the statements in Mr. Anikeyev’s
affidavit fall far short of indicating that he has a meritorious
defense. First, some of Mr. Anikeyev’s purported denials place him
very close to the chiropractic scheme at the center of this action.
(See Pl. Opp’n at 12-13 (“Anikeyev, in fact, associates himself
with [Mr. Simakovsky], admits that he was the reason for the
chiropractic
insurance

PCs

checks,

using

a

PO

Box

for

admits

to

sharing

billing
space

and

with

receipt
the

of

billing

company, . . . . and admits that he earned income from the billing
company.

Anikeyev

then

merely

denies

16

any

further

wrongdoing

without presenting any exculpatory facts or evidence.”).) Second,
the alleged scheme in this action resembles the scheme for which
Mr. Anikeyev pled guilty. Both schemes involved Mr. Anikeyev’s use
of billing companies to falsely bill no-fault insurers for medical
services.
Finally, the court finds that Mr. Anikeyev’s denials are
too

conclusory

to

provide

anything

resembling

a

meritorious

defense. In a very similar civil RICO case, an attorney was alleged
to have been employed by fraudulently incorporated professional
service entities in the collection of no-fault benefit payments
from an insurer. See Allstate Ins. Co. v. Bogoraz, No. 10-CV-5286,
2012 WL 1655552, at *1 (E.D.N.Y. May 9, 2012). The attorneydefendant filed an affidavit seeking to vacate an entry of default.
Id. at *1-2, *5. The attorney stated that he had no knowledge about
the illegitimate corporate structure of the entities, that he
believed

legitimate

medical

services

were

provided

by

the

entities, and that he did not engage in any of the alleged feesplitting

with

the

principal’s

co-defendant

physicians.

See

Allstate Insurance Co. v. Bogoraz et al., No. 10-CV-5286, ECF No.
110, Ex. B. The court considered the attorney’s affidavit to be a
“blanket denial . . . insufficient to demonstrate a meritorious
defense.” 2012 WL 1655552, at *5.
Like the defendant in Bogoraz, Mr. Anikeyev provides
absolutely no evidence beyond approximately one page of blanket
17

denials in his affidavit to assert that he is not responsible for
the alleged scheme detailed in the complaint. Both affidavits
offered

disavowals

of

illegal

activity

without

providing

any

countervailing evidence. See Brenton v. Consol. Rail Corp., No.
00-CV-0742E, 2003 WL 21383255, at *3 (W.D.N.Y. Feb. 4, 2003)
(“[Defendant] has submitted cognizable defenses and crossclaims in
its Answer – to wit, negligence of the plaintiff and other codefendants –; however, it has submitted no evidence in support of
such defenses. Such absence of evidence can only lead this Court
to conclude that [defendant] has not shown a meritorious defense.”
(footnote omitted)).
Accordingly, the court concludes that Mr. Anikeyev has
failed to establish a meritorious defense “good at law so as to
give

the

factfinder

some

determination

to

make.”

Walpert

v.

Jaffrey, 127 F. Supp. 3d 105 (S.D.N.Y. 2015) (internal quotation
marks and citation omitted).
Prejudice
With respect to the prejudice element, the court must
consider “the

effect

of

the

delay

caused

by

the

defendant’s

default, such as thwarting plaintiff’s recovery or remedy . . .
resulting in the loss of evidence, creating increased difficulties
of discovery, or providing greater opportunity for fraud and
collusion.” Swarna v. Al-Awadi, 622 F.3d 123, 142 (2d Cir. 2010)

18

(internal quotation marks, citation, and alterations omitted); see
also Davis v. Musler, 713 F.2d 907, 916 (2d Cir. 1983) (same).
GEICO argues that it is prejudiced because: (1) evidence
has

become

stale;

(2)

Mr.

Anikeyev,

who

has

pled

guilty

to

participating in a related fraudulent scheme, has a history of
concealing assets; and (3) GEICO would have handled the settlement
with Mr. Anikeyev’s co-defendants differently had Mr. Anikeyev not
been in default for a year by that time. (Pl. Opp’n at 16-20.) Mr.
Anikeyev argues that there has been no prejudice to GEICO because
GEICO’s case is likely to rely on easily available and accessible
documents. (Anikeyev Mem. at 20.)
The court finds that GEICO would suffer prejudice if the
entry of default were vacated. First, the court agrees with GEICO
that

its

decision

to

settle

with

Mr.

Simakovsky

and

the

chiropractic entities in this action is highly relevant to whether
prejudice has been established. GEICO’s settlement strategy may
well have involved accepting a lesser settlement amount from Mr.
Simakovsky and the chiropractic entities partially in reliance on
the unchallenged entry of default it had obtained against Mr.
Anikeyev and Mr. Sandler ten months prior. (ECF Nos. 24, 39.) The
settlement may well have “thwart[ed] plaintiff[s’] recovery or
remedy.” Swarna, 622 F.3d at 142 (internal quotation marks and
citation omitted). Second, the settlement rendered Mr. Simakovsky
— the purported “paper owner” of the chiropractic entities —
19

without a reason to preserve evidence or participate in discovery
in this action. Finally, Mr. Anikeyev is not in a position to tell
GEICO how to prove its case, and his argument that GEICO could
establish liability based on easily accessible documents is mere
speculation. GEICO would almost certainly need to review patient
records, billing records, and other documents of the corporation
defendants, one of which has been dissolved (see Compl. at ¶ 12),
and take depositions of, for example, individuals who worked at
the chiropractic entities as well as patients. GEICO has shown
that

the

default

in

this

action

has

“creat[ed]

increased

difficulties of discovery.” Swarna, 622 F.3d at 142 (internal
quotation marks and citation omitted)
II.

Motion for Default Judgment
Although Mr. Anikeyev filed objections to Judge Gold’s

report and recommendation (which recommended granting the motion
for default judgment against Mr. Anikeyev and Mr. Sandler (ECF No.
42)), his objections almost entirely focused on whether the entry
of default should be vacated. (See ECF No. 46 (“The main point of
contention

is

that

the

certificate

of

default

should

be

vacated.”).) However, the court will separately analyze the motion
for default judgment.
A.

Legal Standard
In reviewing a report and recommendation, the district

court “may accept, reject, or modify, in whole or in part, the
20

findings or recommendations made by the magistrate judge.” 28
U.S.C. § 636(b)(1)(C). The district court “shall make a de novo
determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). Where “the objecting party makes only conclusory or
general objections, or simply reiterates the original arguments,
the Court will review the report and recommendation strictly for
clear error.” Zaretsky v. Maxi-Aids, Inc., No. 10-CV-3771, 2012 WL
2345181, at *1 (E.D.N.Y. June 18, 2012) (internal quotation marks
omitted); Mario v. P & C Food Markets, Inc., 313 F.3d 758, 766 (2d
Cir. 2002) (“Merely referring the court to previously filed papers
or arguments does not constitute an adequate objection”); see also
Soley v. Wasserman, 823 F. Supp. 2d 221, 228 (S.D.N.Y. 2011). The
district

court

is

“permitted

to

adopt

those

sections

of

a

magistrate judge’s report to which no specific objection is made,
so long as those sections are not facially erroneous.”

Batista v.

Walker, No. 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31,
1995) (Sotomayor, J.) (citation and internal quotation marks and
brackets omitted).
Furthermore, even on de novo review of specific
objections, the court “will not consider ‘arguments, case law,
and/or evidentiary material which could have been, but [were]
not, presented to the magistrate judge in the first instance.’”
Brown v. Smith, No. 09-CV-4522, 2012 WL 511581, at *1 (E.D.N.Y.
21

Feb. 15, 2012) (quoting Kennedy v. Adamo, No. 02-CV-1776, 2006
WL 3704784, at *1 (E.D.N.Y. Sept. 1, 2006)).
B.

Analysis
The court has addressed all of the arguments presented

in

Mr.

Anikeyev’s

objections

throughout

its

analysis

of

Mr.

Anikeyev’s motion seeking vacatur of the certificate of default,
and, for the same reasons discussed above, finds them to be without
merit. On de novo review of Judge Gold’s well-crafted and reasoned
report and recommendation, the court adopts Judge Gold’s report
and recommendation in its entirety with respect to Mr. Anikeyev.
CONCLUSION
Accordingly, Mr. Anikeyev’s motion to vacate the entry
of default is DENIED. The motion for entry of a default judgment
is therefore granted with respect to Mr. Anikeyev, and judgment
shall be entered against Mr. Anikeyev and Mr. Sandler, jointly and
severally, in the amount of $4,189,026.93, plus post-judgment
interest as prescribed by law. See 28 U.S.C. § 1961. The Clerk of
Court is directed to enter judgment and close this case.
SO ORDERED.
Dated:

March 31, 2015
Brooklyn, New York
_____________/s/_____________
Kiyo A. Matsumoto
United States District Judge

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