Trustees of the Local 7 Tile Industry Welfare Fund, Trustees of the Local 7 Tile Industry Annuity Fund, Trustees of the Tile Layers Local Union 52 Pension Fund et al v. Gibraltar Contracting, Inc.

Filing 24

ORDER ADOPTING REPORT AND RECOMMENDATIONS ; denying 20 Motion to Vacate ; adopting Report and Recommendations as to 21 Report and Recommendations: Upon de novo review of the Report and Recommendation of Magistrate Judge Reyes dated October 23, 2020 (Doc. No. 21), and for the reasons stated in the attached written Order, the Court overrules defendant Gibraltars objections to said Report and Recommendation (Doc. No. 22), and denies Gibraltars Motion to Vacate the Default Judgment entered on September 30, 2019 (Doc. No. 20). As such, the Judgment of September 30, 2019 remains in full force and effect.Ordered by Judge Roslynn R. Mauskopf on 3/31/2021. (Mauskopf, Roslynn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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TRUSTEES OF THE LOCAL 7 TILE INDUSTRY WELFARE
FUND, TRUSTEES OF THE LOCAL 7 TILE INDUSTRY
ANNUITY FUND, TRUSTEES OF THE TILE LAYERS LOCAL
UNION 52 PENSION FUND, TRUSTEES OF THE
ORDER ADOPTING
BRICKLAYERS & TROWEL TRADES INTERNATIONAL
REPORT AND
PENSION FUND, AND TRUSTEES OF THE
RECOMMENDATION
INTERNATIONAL MASONRY INSTITUTE,
18-CV-3042 (RRM) (RER)
Plaintiff,
- against GIBRALTAR CONTRACTING, INC.,
Defendants.
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ROSLYNN R. MAUSKOPF, United States District Judge.
The dispute arises out of a collective bargaining agreement (“CBA”) that Defendant
Gibraltar Contracting, Inc. (“Gibraltar”) signed as an Independent Employer with Local Union
No. 7 of the Tile Setters and Tile Refinishers Union (“Local 7”). (Def.’s Mem. Doc. No. 20-16
at 1; R&R 1 (“R&R 1”) (Doc. No. 15) at 2.) Plaintiffs brought this action pursuant to the
Employee Retirement Income Security Act (“ERISA”) and Labor Management Relations Act
(“LMRA”) after Gibraltar failed to make timely fringe benefit fund contributions as required
under the CBA. (Def.’s Mem.at 1–2; R&R at 3). Gibraltar failed to answer or otherwise
respond to the complaint and Plaintiffs filed a motion for a default judgment, which the Court
referred to Magistrate Judge Reyes for a report and recommendation. Magistrate Judge Reyes
issued a report recommending that a default judgment be entered against Gibraltar in the total
amount of $679,841.65, plus post judgment interest, (Doc. No. 15). Gibraltar did not object to
this R&R, so the Court adopted it and entered judgment accordingly. (Doc. No. 16.)

Four months after judgment was entered, Gibraltar served a motion to set aside the
default judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. (Mot. to
Vacate (Doc. No. 20-16).) When the fully briefed motion was filed, the Court referred that
motion to Judge Reyes, who issued a second report and recommendation (“R&R 2”) (Doc. No.
21), recommending that the motion be denied. Gibraltar now objects to R&R 2, and Plaintiffs
oppose those objections (Doc. No. 23). For the reasons stated below, the Court adopts R&R 2 in
all respects.
BACKGROUND
During the relevant time period, Gibraltar was a small minority-owned business
enterprise. (Def.’s Mem. at 1.) Gibraltar signed the CBA with Local 7 as a precondition to
performing retiling work for the Brooklyn Battery Tunnel as a subcontractor of Tully
Construction Co. Inc (“Tully”). (Id.; see Pls.’ Opp. (Doc. No. 20-17) at 7–8.) Thereafter, Tully
fell behind in making payments to Gibraltar, and Gibraltar was then unable to meet the fringe
benefit contribution requirement of the CBA. (Def.’s Mem.at 4.) These late payments
contributed to financial losses for Gibraltar, and near the end of the tunnel project, Gibraltar
“ceased active business operations.” (Varela Decl. at ¶ 24).
Gibraltar’s President, Christian Varela, received calls from Local 7 requesting that he
urge Tully to make the outstanding payments. (Id.) Tully was not responsive, and Varela
advised Local 7 to contact Tully directly. (Id.) “Gibraltar assumed that Local 7 . . . would work
something out with Tully in order to obtain the payments that were due.” (Id.) In March 2019,
Varela received a copy of an email exchange between a Tully representative and Plaintiffs’
counsel that contained the outstanding contribution amount and the subject line “Local 7 Tile
Industry Funds v. Gibraltar Contracting –Contributions Owed.” (Def.’s Mem.at 21; Def.’s Mot.,

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Ex. H; Varela Decl. ¶¶ 28, 30; see Pls.’ Opp. at 7.) Tully issued a check to Gibraltar in the
amount specified in that email as the “outstanding amount.” (Varela Decl. ¶ 28.) Gibraltar then
issued a check to Plaintiffs with the notation “Final Payment BB28 (Brooklyn Battery [Job
Number]).” (Id. at ¶ 29; Def.’s Mot., Ex. D at 6, at 107.) The notation “was not challenged or
commented upon.” (Varela Decl. at ¶ 29.) Gibraltar “believed that its obligations had been
satisfied, “in part because Local 7 never informed Gibraltar that “this action would be, or had
been, commenced.” (Def.’s Mem. at 4, 12.) Until its receipt of the later default judgment,
Gibraltar believed that “all fringe benefit obligations owing to Local 7 had been paid by Tully.”
(Def.’s Mem. at 5.)
Procedural History
Plaintiff filed this action under ERISA on May 23, 2018 for amounts due under the CBA.
Plaintiffs’ complaint demanded $527,314.90 in unpaid contributions, “plus interest at a rate of
10% to the Local 7 Benefit Funds and a rate of 15% to the International Benefit Funds;
liquidated damages of 20% of the principal amount due; plus all reasonable attorneys’ fees,
expenses, and costs.” (Compl. at ¶¶ 5, 21.) In their subsequent motion for default judgment,
Plaintiffs calculated interest by breaking down the unpaid principal contribution payments into
separate amounts due to the Local Benefit Funds and amounts due to the International Benefit
Funds and then charging those separate amounts at the rates of 10% and 15% per annum,
respectively, as was provided for in the CBA. (See Hill Decls. D & E (Doc. Nos. 12-4, 12-5).)
Gibraltar does not dispute that the complaint was properly served by personal service
upon the New York Secretary of State (“the Secretary”) as its statutory agent. (Def.’s Mem.at 5,
10; see Doc. No. 7.) However, Gibraltar did not appear before this Court or otherwise answer
the complaint, (see Doc. Entry dated 8/6/2018); and on August 14, 2018, the Clerk of Court

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entered default. (Doc. No. 9.) Plaintiffs served Gibraltar with the Motion for Default Judgment
via first class and certified mail through the United States Postal Service (“USPS”) on October 3,
2018. (Doc. No. 14.) After Plaintiffs received no response from Gibraltar, this Court referred
the Motion for Default Judgment to Magistrate Judge Reyes, who subsequently recommended
that the motion be granted. (R&R 1 at 7.) In that Report and Recommendation, Judge Reyes
subtracted from the outstanding principal contributions $101,841.10 in partial payments received
after the commencement of the action. (R&R 1 at 3.) To calculate the interest due until
judgment, Judge Reyes charged the entire outstanding balance of contributions (less the partial
payment) twice, first with the 10% interest rate that the CBA provided for local funds, then with
the 15% interest the CBA provided for international funds. (R&R 1 at 6–7.)
That Report and Recommendation was served on Gibraltar via first class and certified
mail through the USPS on December 26, 2018. (Doc No. 16.) Although R&R 1 advised
Gibraltar that objections to its recommendations had to be filed within fourteen days of
Gibraltar’s receipt of the R&R 1, and that “[f]ailure to file timely objections may waive the right
to appeal” this Court’s adopting the R&R (R&R 1 at 8), Gibraltar did not file any objections.
Accordingly, the Court adopted the Report and Recommendation on September 26, 2019, (Doc.
No. 18). A copy of the order was mailed to Gibraltar the next day. A judgment was
subsequently entered, (Doc. No. 19), and mailed to Gibraltar on September 30, 2019. All
mailings, including of the R&R 1 were sent to the address that the Secretary of State had on file.
(Def’s. Mot., Ex. C-2; Doc. Nos. 6, 14, 16.)
Gibraltar’s Motion to Vacate the Default Judgment, and Magistrate Judge Reyes’
Report and Recommendation
On or about January 30, 2020, four months after judgment was entered, Gibraltar served
Plaintiffs with a motion to set aside the judgment. (Pls.’ Opp. at 13; Def.’s Mot. at 2.) Gibraltar
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argued that its default should be excused under either Fed. R. Civ. P. 60(b)(1), for excusable
neglect, or under Rule 60(b)(6), which permits vacatur of a default judgment for “any other
reason.” (Mot. to Vacate at 15.) Gibraltar also argued that, since certain payments made after
the complaint were not reported to the Court, the Court’s final interest calculation was incorrect
and should be modified. (Id. at 28.)
As to its 60(b)(1) motion, Gibraltar argued that the Court should vacate judgment under
the four-factor test for excusable neglect. (Id. at 16.) Gibraltar focused its brief on the reason for
delay, arguing it had been unaware that the Plaintiffs had commenced the action, that it had
never been informed of the litigation by Plaintiffs (even though Varela had remained in touch
with them), and that it believed that Tully had fully discharged its obligations to Plaintiffs. (See
id. at 18.) Gibraltar and its counsel attest that they did not learn of the instant action until
October 3, 2019, when Varela received a copy of the Court’s Order Adopting Report and
Recommendation. (Def.’s Mem. at 5; Doc. No. 20-2 (“Janice Decl.”) at ¶ 2.) To date, Varela
has been unable to locate the summons and complaint even after discussions with his clerical
staff regarding legal mail received. (Def.’s Mem. at 14–15.) Nevertheless, upon learning of the
judgment, Gibraltar immediately contacted its counsel and initiated an internal investigation to
determine the whereabouts of the summons and complaint. (Doc. No. 20-18 (“Def.’s Reply”) at
3-4; Varela Decl. at ¶¶ 5, 7.)
Gibraltar also argued that it had meritorious defenses weighing in favor of vacatur. First,
it argued that the Plaintiffs waived interest for late payments before February 2018, by failing to
include those amounts in their complaint; and, because they never gave Gibraltar notice that they
would insist on payment of interest thereafter, they waived their right to interest and liquidated
damages during all periods relevant to the complaint. (Id. at 24–25.) Second, it argued that there

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had been accord and satisfaction when Plaintiffs told Tully the amount outstanding, Tully issued
a check to Gibraltar in that amount, and Gibraltar paid the amount to Local 7. (Id. at 25–26.)
Third, Gibraltar argued that, since Local 7 was aware that the check in question was not the full
amount outstanding, it should have insisted on full payment when it received payment from
Gibraltar. (Id. at 27.) Since it did not do so, Gibraltar lost its opportunity to insist on further
payment from Tully, and Plaintiffs should be estopped from insisting on further payments. (Id.)
Finally, Gibraltar moved to modify Judge Reyes’ calculation of interest on two separate
grounds. First, Gibraltar argued that, although Judge Reyes accounted for one partial payment
made during the pendency of this action in his interest calculation, the calculation failed to
account for the fact that the entire balance owed to the Plaintiffs had been paid by the time of the
default judgment. (Id. at 28–29.) Second, Gibraltar argued that Judge Reyes incorrectly
calculated interest in two respects: by failing to apply the correct reference dates for calculating
interest rates, and by incorrectly calculating interest on the entire principal when the CBA
provided for separate interest rates of 10% for unpaid benefit contributions due to the Local
Benefit Funds and 15% for unpaid benefits due to the International Benefit Funds. (Id. at 29–
30.)
On March 11, 2020 – the day on which the fully briefed Rule 60(b) motion was filed –
the Court referred the motion to Magistrate Judge Reyes for a Report and Recommendation. On
October 23, 2020, Magistrate Judge Reyes issued his R&R, recommending that the motion to
vacate be dismissed in all respects and that the motion to recalculate interest due be denied.
(R&R 2 (Doc. No. 21).) Judge Reyes applied the test set forth in American Alliance Insurance
Co. v. Eagle Insurance Co., which asks (1) whether the default was willful, (2) whether the
defendants have a meritorious defense, and (3) whether vacating the default will prejudice the

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non-defaulting party. (Id. at 5 (citing 92 F.3d 57, 59 (2d Cir. 1996)).) First, Judge Reyes found
that Gibraltar’s delay was willful. (Id. at 7–8.) Gibraltar had no adequate excuse for failing to
receive multiple mailings and, even after the time it admits to receiving a mailing from Plaintiffs,
it delayed over three months before filing a motion to vacate. (Id. at 7.) Even if, as Gibraltar
argued, it needed time to gather its records, that does not explain such a long delay. (Id. at 8.)
Overall, Gibraltar’s “unexplained delay and repeated failure to receive mail” weighed in favor of
denying their motion. (Id.)
Second, Judge Reyes found that none of Gibraltar’s offered defenses “raise[d] a serious
question as to the validity of Plaintiffs’ allegations.” (Id. at 9.) As to waiver, the CBA provided
that acceptance of late contributions would not constitute a waiver. (Id. at 10.) Nor did Plaintiffs
waive their right to payments due outside of February, March, and April of 2018 by filing a
complaint seeking damages only related to contributions for these months, because these were
the months for which contributions and interest were outstanding at the time of filing. (Id.)
Plaintiffs simply followed “the prevailing view in the Circuit” by bringing “suit for the
outstanding principal amount and related interest due at time of filing.” (Id.) As to accord and
satisfaction, Judge Reyes found there was no accord. (Id.) Though Local 7 accepted late
contributions from Tully, it never demonstrated any intent to accept those late contributions in
lieu of the interest and liquidated damages provided by the CBA. (Id. at 10–11.) Thus, the
necessary intent to form an accord was lacking. (Id. at 11.) As to estoppel, Judge Reyes found
that Gibraltar failed to state facts showing a material misrepresentation, reliance on the
misrepresentation or extraordinary circumstances. (Id.) Specifically, Gibraltar unreasonably
relied on its own believe that the late contribution by Tully discharged its own obligations under
the CBA. (Id. at 11–12.) While Judge Reyes found little possibility of prejudice, he held that the

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absence of prejudice would not by itself justify vacatur. (Id. at 12.) Finally, Judge Reyes
rejected Gibraltar’s arguments that (1) he had used the wrong principal amount and (2) had
applied the wrong rates when he calculated the interest due. (Id. at 13–14.)
Gibraltar’s Objections and Plaintiffs’ Opposition
Gibraltar submitted a letter brief “in opposition to the confirmation” purporting to object
to Judge Reyes’ findings, but this document mixes some specific objections into what otherwise
amounts to a vague rehashing of its motion to vacate. (Objs. (Doc. No. 22).) Gibraltar raises
arguments regarding the elements of (1) willfulness and (2) its meritorious defenses and
maintains that Judge Reyes incorrectly calculated the interest and damages owed.
First, Gibraltar addresses Judge Reyes’ findings as to its willfulness in failing to answer
or otherwise respond. (Id. at 2–3.) This argument adopts Judge Reyes’ conclusions and rehashes
the motion to vacate. Gibraltar explicitly approves Judge Reyes’ interpretation that “a finding of
willfulness in the context of a motion to vacate a default must be based on conduct that is more
than merely negligent.” (Id. at 2.) Gibraltar then acknowledges Judge Reyes’ conclusion that
“defendant’s inability to adequately explain Gibraltar’s failure to receive the two subsequent
mailings . . . was . . . sufficient to find that the defendant’s default was deliberate.” (Id.)
Gibraltar then concedes that it “did not, and does not, have any excuse for not receiving the
mailings.” (Id.) Gibraltar finally argues that “a finding of willfulness should not have been
made” because it had no reason to believe under the circumstances that it would face liability and
that “the background of the course of dealings between the parties should have informed the
discretion of the Magistrate.” (Id. at 2–3.) Gibraltar further acknowledges Judge Reyes’ finding
that the three-month delay was facially unreasonable, and then goes on to repeat its prior

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argument that the delay was reasonable in light of its need to gather relevant records and conduct
an internal investigation. (Id. at 3.)
Second, Gibraltar makes one specific objection of law regarding the defense of waiver
and otherwise rehashes its arguments regarding accord and satisfaction, while acknowledging
that it has no basis to dispute Judge Reyes’ findings as to its defense of equitable estoppel. (Id.
at 4–5.) As to its defense of waiver, Gibraltar specifically objects that “the Magistrate
overlooked the line of cases that hold that once a waiver has taken place, the waiver can be
withdrawn to the extent that it is executory ‘provided that the party whose performance has been
waived, is given notice of withdrawal and a reasonable time after notice within which to
perform.’” (Id. at 4.) Plaintiffs thus owed Gibraltar notice that it would insist on future interest
payments, after indicating that it would not enforce this part of the CBA. (Id.) As to the defense
of accord and satisfaction, Gibraltar rehashes its arguments, acknowledging Judge Reyes’
holding that Plaintiffs’ negotiations concerned only the principal amount and evinced no intent to
accept those payments in satisfaction of Gibraltar’s interest obligations under the CBA. (Id.)
Gibraltar therefore “submitted that a question of fact exists with respect to the intent of the
parties at the time that Tully requested that plaintiff inform it of the amount owed.” (Id.)
Gibraltar explicitly declined to challenge Judge Reyes’ findings as to equitable estoppel. (Id. at
5.) Finally, Gibraltar again argued that Judge Reyes had miscalculated the amount of interest
due. (Id. at 5–8.)
In opposition, Plaintiffs argue that Gibraltar’s purported objections to Judge Reyes’ R&R
on the motion to vacate should be reviewed only for clear error, because Gibraltar “fail[ed] to
allege or identify a single instance [] where the Magistrate misapprehended any facts or law such
that the R&R is objectionable.” (Pls.’ Opp. to Def.’s Objs. (“Opp.”) (Doc. No. 23) at 2–6.) In

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particular, they argue that Gibraltar’s arguments regarding the willfulness of its default and its
defenses of waiver and accord and satisfaction raise no specific objections either to Judge Reyes’
findings of law or of fact, and therefore should be reviewed only for clear error. (Id. at 2–6.)
Because Judge Reyes’ findings were correct with respect to all three arguments, they argue,
Gibraltar’s objections should be denied. While Plaintiffs allow that Gibraltar’s argument about
Judge Reyes’ failure to consider the “course of dealing” between the parties arguably raises an
objection to that section which disposed of the defense of waiver, the objection is nonetheless
baseless. (Id. at 2–3.) Finally, because case law of the Second Circuit permits interest to be
calculated on all principal due at the time of the filing of the complaint, Judge Reyes’ calculation
of interest was correct. (Id. at 5–6.)
STANDARD OF REVIEW
Rule 72(b)(2) provides that, within 14 days after a Magistrate Judge enters a Report and
Recommendation on a dispositive matter, “a party may serve and file specific written objections
to the proposed findings and recommendations” with the District Judge. The Court reviews all
such objections de novo. United States ex rel. Coyne v. Amgen, Inc., 243 F. Supp. 3d 295, 297
(E.D.N.Y. 2017), aff’d sub nom. Coyne v. Amgen, Inc., 717 F. App’x 26 (2d Cir. 2017).
However, “objections that simply reiterate the original arguments, without identifying a specific
error in the report and recommendation, e.g., why a specific finding or conclusion is faulty or the
magistrate judge erred in rejecting a specific argument, are reviewed under the clear error
standard.” Alvarez Sosa v. Barr, 369 F. Supp. 3d 492, 497 (E.D.N.Y. 2019). Similarly,
“objections that are merely perfunctory responses argued in an attempt to engage the district
court in a rehashing of the same arguments set forth in the original [papers] will not suffice to
invoke de novo review.” Molefe v. KLM Royal Dutch Airlines, 602 F. Supp. 2d 485, 487

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(S.D.N.Y. 2009) (quoting Vega v. Artuz, No. 97-CV-3775, 2002 WL 31174466, at *1 (S.D.N.Y.
Sept. 30, 2002)).
DISCUSSION
Excusable Neglect Under 60(b)(1)
The Court may set aside a default judgment “[o]n motion and just terms” where the
movant demonstrates excusable neglect. See Fed. R. Civ. P. 60(b)(1). Setting aside a default
judgment rests on the court’s sound discretion. New York v. Green, 420 F.3d 99, 104 (2d Cir.
2005). To guide its discretion, the Court must consider (1) whether the default was willful; (2)
whether the defendants have a meritorious defense; and (3) whether vacating the default will
prejudice the non-defaulting party. Am. All. Ins. Co. v. Eagle Ins. Co., 92 F.3d at 59. “[I]n
ruling on a motion to vacate a default judgment, all doubts must be resolved in favor of the party
seeking relief from the judgment.” Green, 420 F.3d at 104. Gibraltar contends that its default
was not willful under (1), and that it possesses the meritorious defenses of waiver and accord and
satisfaction under (2).
Except for one point, Gibraltar raises no specific objections as to Judge Reyes’ holding
that their default was willful. Gibraltar concedes it had no excuse for default, thus agreeing with
Judge Reyes’ conclusion on this point. Indeed, Gibraltar offers no reason at all, not only for the
original default, but for failing to receive every single mailing up to the Court’s Order adopting
R&R 1, even though all mailings were sent to the same address. Gibraltar also rehashes its
arguments that the delay was reasonable in light of its need to gather records and conduct an
internal investigation, without specifically objecting to Judge Reyes’ conclusions as to any fact
or law. Because Gibraltar repeats arguments made to Judge Reyes, the Court reviews these
points only for clear error and finds none.

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While Gibraltar does object specifically that Judge Reyes failed to consider “the
background of the course of dealings between the parties,” Judge Reyes considered all the
evidence presented to him by the parties. Reviewing this contention de novo, nothing in the
course of dealing between them suggested to Judge Reyes, nor does any part of the record now
suggest to the Court, that the course of dealings between the parties would have led Plaintiffs to
expect Gibraltar to ignore a properly served complaint.
Likewise, Gibraltar makes no specific objection to Judge Reyes’ findings regarding the
existence of a meritorious defense. However, even under a de novo review, the objections here
lack merit. Gibraltar insists that Judge Reyes should have found that the Plaintiffs waived their
right to interest and liquidated damages. In particular, it argues that Judge Reyes overlooked
cases holding that, once a waiver takes place, it may only be revoked on notice to the party
affected. Waiver is “a litigant’s intentional relinquishment of a known right” or contractual
protection. Hamilton v. Atlas Turner, Inc., 197 F.3d 58, 61 (2d Cir. 1999). Under this standard,
Judge Reyes properly found no evidence that any of the Plaintiffs intended to waive their
entitlement to interest or liquidated damages. Therefore, any cases regarding the revocation of
waiver are irrelevant.
Gibraltar repeats its arguments regarding accord and satisfaction. While this argument is
substantively identical to the one it made above, the Court, out of caution, will review this point
de novo, since it concerns the bulk of the judgment amount at issue. “An accord and satisfaction
is an agreement between two parties under which one party accepts a stipulated performance by
the other party in discharge of an unresolved obligation by the latter party.” Stahl Mgmt. Corp.
v. Conceptions Unlimited, 554 F. Supp. 890, 892–93 (S.D.N.Y. 1983) (citing Rein v. Wagner,
268 N.Y.S.2d 659, 662, modified on other grounds, 269 N.Y.S.2d 578, (1965), aff’d, 18 N.Y.2d

12

989 (1966)). “To establish an accord and satisfaction, [there] must [be] an intention to discharge
the old obligation when the new one has been performed.” Id. The party asserting the defense
bears the burden of proof. Clarke v. Max Advisors, LLC, 235 F. Supp. 2d 130, 144 (N.D.N.Y.
2002) (citing Env’t Prods. & Servs. Inc. v. Consolidated Rail Corp., 728 N.Y.S.2d 256, 258
(N.Y. App. Div. 2001)). Gibraltar has done no more than produce a copy of a check which
purported to be a “final payment” of the contributions they owed. There is no proof that the
Plaintiffs or their agents accepted this payment with intent to enter into an accord. This
objection is therefore without merit.
Calculation of Amounts Due
In its most recent filing Gibraltar appears to object that the final amount due should not
include principal payments received by Plaintiffs after the commencement of the action. While
it does not make this argument directly, its final calculation of the amount due excludes the
entire amount of principal payments due at the time of the filing of the complaint. Nevertheless,
Gibraltar did not argue in its original motion that these amounts should be excluded from the
final judgment, and the Court has already found without merit the argument that there was an
accord and satisfaction for these amounts. Therefore, to the extent that Gibraltar objects that the
unpaid principal should be excluded from the judgment, the Court finds the argument to be
without merit.
Gibraltar specifically objects to that aspect of the R&R that recommended the payment of
pre-judgment interest. However, the only issue properly before the Court is whether vacatur
should be granted under 60(b). Because the Court has already found without merit Gibraltar’s
motion to vacate, there is no need to reach the calculation of interest. Doing so would be
tantamount to entertaining an untimely motion to object to the first R&R, in which interest was

13

originally calculated. But Gibraltar defaulted in filing objections to that R&R and has not shown
any reason why the Court should reopen that judgment and its calculation of damages.
CONCLUSION
Upon de novo review of the Report and Recommendation of Magistrate Judge Reyes
dated October 23, 2020 (Doc. No. 21), and for the reasons stated herein, the Court overrules
defendant Gibraltar’s objections to said Report and Recommendation (Doc. No. 22), and denies
Gibraltar’s Motion to Vacate the Default Judgment entered on September 30, 2019 (Doc. No.
20). As such, the Judgment of September 30, 2019 remains in full force and effect.
SO ORDERED.
Dated: Brooklyn, New York
March 31, 2021

Roslynn R. Mauskopf
_______________________
ROSLYNN R. MAUSKOPF
United States District Judge

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