Sunoco, Inc. (R&M) v. 175-33 Horace Harding Realty Corp.

Filing 97

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATION; Judge Brown's R&R (Docket Entry 88) is ADOPTED in its entirety and Plaintiff's Damages Motion (Docket Entry 82) is GRANTED. The Clerk of the Court is therefore directed to enter judgm ent in favor of Plaintiff and against Defendant according to the calculations within Plaintiff's Motion for Damages (Docket Entry 82). Further, the Clerk of the Court is directed to TERMINATE Plaintiff's alternative damages motion (Docket Entry 85). So Ordered by Judge Joanna Seybert on 9/22/2016. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
SUNOCO, INC. (R&M),
Plaintiff,
-against175-33 HORACE HARDING REALTY CORP.,

MEMORANDUM & ORDER
11-CV-2319(JS)(GRB)

Defendant.
---------------------------------------X
APPEARANCES
For Plaintiff:
Henry Reichner, Esq.
Michael C. Falk, Esq.
Reed Smith LLP
Three Logan Square
1717 Arch St., Suite 3100
Philadelphia, PA 19103
Othiamba Nkosi Lovelace, Esq.
Rachel Anna Postman, Esq.
Sarah Levitan, Esq.
Reed Smith LLP
599 Lexington Avenue
New York, NY 10022
For Defendant:

Robert Neuner, Esq.
Kenneth L. Robinson, Esq.
Robinson & Associates, P.C.
35 Roosevelt Avenue
Syosset, NY 11791

SEYBERT, District Judge:
Pending before the Court is plaintiff Sunoco, Inc.’s
(“Plaintiff”) motion for damages, proposing a formula for the
calculation of contract damages incurred in this case (the “Damages
Motion,” Docket Entry 82) and Magistrate Judge Gary R. Brown’s
Report and Recommendation (“R&R”), recommending that this Court
grant Plaintiff’s motion,

(Docket Entry 88).

Defendant 175-33

Horace Harding Realty Corp. (“Defendant”) has filed Objections to
Judge Brown’s R&R.

(Docket Entry 89.)

For the reasons that

follow, the Court overrules Defendant’s Objections and adopts
Judge Brown’s R&R in its entirety.
BACKGROUND
The Court assumes familiarity with the facts of this
case, which are detailed in the Court’s prior orders.1

Briefly,

Plaintiff commenced this action on May 12, 2011, seeking damages
for breach of contract and violations of the New York Navigation
Law

in

connection

with

necessary

environmental

remediation.

(Compl. ¶¶ 22–27, 31–35.) Following a bench trial, the Court found
in Plaintiff’s favor on both its breach of contract and New York
Navigation Law claims.

(May 27, 2015 Order (the “May 27 Order”),

Docket Entry 78, at 25.)

However, in light of the election of

remedies doctrine, the Court allowed Plaintiff to choose the theory
under which it wished to recover damages--Plaintiff could either
recover

(1)

$751,188.65

in

damages

for

breach

of

contract,

“together with ninety-five present of costs incurred since then,”
plus prejudgment interest, or (2) $672,139.04 in damages under the
New York Navigation Law, plus reasonable attorney fees.

(May 27

Order at 25.)

For a summary of the facts of this case, see generally the
Memorandum, Decision, and Order After Bench Trial. (Docket
Entry 78.)
1

2

In its Damages Motion, Plaintiff elected to recover
damages under its breach of contract theory and submitted a
proposed calculation of its damages.

(Damages Mot. at 1-2.)

Plaintiff also submitted invoices as proof of the post-trial
remediation expenditures it incurred.
A.)

(See Damages motion, Ex.

In opposition, Defendant submitted a Declaration (“the July

14 Declaration”) asserting three principal arguments: (1) that
prejudgment interest should have been calculated from the date
Plaintiff actually paid its remediation invoices, rather than the
date the invoices were issued; (2) that Plaintiff’s formula should
have taken into account federal and state tax savings Plaintiff
received or will receive as a result of the litigation; and (3)
that the invoices Sunoco provided, which list Evergreen Resource
Group, LLC (“Evergreen”) as the client, cannot serve as evidence
of post-trial remediation expenditures.
Entry

83,

¶¶

alternative

3–5,
damages

7.)

In

response,

calculation

with

(July 14 Decl., Docket
Plaintiff

submitted

prejudgment

an

interest

calculated from the date Plaintiff paid its remediation invoices.
(Docket Entry 85.)
On August 4, 2015, the undersigned referred Plaintiff’s
motions to Judge Brown for an R&R, (Docket Entry 87), and Judge
Brown issued his R&R on December 23, 2015 (Docket Entry 88).

The

R&R recommends that the Court enter Judgment consistent with
Plaintiff’s calculation in its original Damages Motion.
3

(R&R at

7–8.)

Contrary

to

Defendant’s

contention

that

prejudgment

interest should have been calculated from the date Plaintiff
actually paid its remediation invoices, Judge Brown found that
N.Y. C.P.L.R. 5001(b) instead required that when “damages [are]
incurred

at

various

times,

[prejudgment]

interest

computed upon each item from the date it was incurred.”
5 (quoting N.Y. C.P.L.R. 5001(b)).

shall

be

(R&R at

Addressing Defendant’s second

argument regarding tax savings, Judge Brown found that “[t]he plain
language of the statute does not support the notion that reductions
should be applied for taxes,” and even if it did, “no mechanism
[exists] for calculating these proposed reductions, which would be
extraordinarily difficult to ascertain with any reasonable degree
of certainty.”

(R&R at 5-6.)

Finally, Judge Brown ruled that

Defendant’s contention regarding Defendant’s obligation to pay
invoices listing “Evergreen” as the payor were meritless because
Plaintiff

provided

“a

sworn

declaration

explaining

relationship between . . . [P]laintiff and Evergreen.”

the

(R&R at

7.)
Defendant filed Objections to Judge Brown’s R&R which
largely reiterate the same arguments Defendant made in opposition
to Plaintiff’s Damages Motion.

(Objections, Docket Entry 89.)

Defendant argues in its Objections that: (1) interest should be
calculated from the date remediation invoices were paid, rather
than the date they become due; (2) the prejudgment interest award
4

should be reduced to the extent Plaintiff will receive a tax
benefit; and (3) invoices issued to Evergreen should not be
considered.

(Objections at 1–2.)

Defendant further requests

“limited discovery” on the latter two issues.

(Objections at 2.)

DISCUSSION
The Court will first address the standard of review
before turning to Defendant’s objections specifically.
I.

Standard of Review
“When evaluating the report and recommendation of a

magistrate judge, the district court may adopt those portions of
the report to which no objections have been made and which are not
facially erroneous.”

Walker v. Vaughan, 216 F. Supp. 2d 290, 291

(S.D.N.Y. 2002) (citation omitted).
specific,

written

objections

to

A party may serve and file
a

magistrate’s

report

and

recommendation within fourteen days of receiving the recommended
disposition.

See FED. R. CIV. P. 72(b)(2).

Upon receiving any

timely objections to the magistrate’s 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); see also FED. R. CIV. P. 72(b)(3).

28

A party

that objects to a report and recommendation must point out the
specific portions of the report and recommendation to which they
object.

See Barratt v. Joie, No. 96-CV-0324, 2002 WL 335014, at

*1 (S.D.N.Y. Mar. 4, 2002) (citations omitted).
5

When a party raises an objection to a magistrate judge’s
report, the Court must conduct a de novo review of any contested
sections of the report.

See Pizarro v. Bartlett, 776 F. Supp.

815, 817 (S.D.N.Y. 1991).
or

general

objections,

But if a party “makes only conclusory
or

simply

reiterates

his

original

arguments, the Court reviews the Report and Recommendation only
for clear error.”

Pall Corp. v. Entegris, Inc., 249 F.R.D. 48, 51

(E.D.N.Y. 2008) (internal quotation marks and citation omitted).
Furthermore, even in a de novo review of a party’s
specific

objections,

the

Court

ordinarily

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.”

Kennedy v. Adamo, No. 02-CV-1776, 2006 WL

3704784, at *1 (E.D.N.Y. Sept. 1, 2006) (internal quotation marks
and citation omitted).
II.

Defendant’s Objections
It is apparent that Defendant’s Objections merely rehash

the same arguments Defendant made in opposition to Plaintiff’s
initial Damages Motion.

When a party “simply reiterates his

original arguments” in its Objections, the Court need only review
the Magistrate Judge’s Report and Recommendation for clear error.
Pall Corp., 249 F.R.D. at 51.

Since Judge Brown already ruled on

all of the arguments raised in Plaintiff’s Objections, the Court
need not discuss them further.

The only novel point Plaintiff
6

raises, is its request to conduct limited discovery regarding the
tax benefits Plaintiff may receive and the relationship between
Plaintiff and Evergreen.

However, the Court finds that allowing

additional discovery to take place at this late date would not be
productive.
1121,

2007

See Everson v. N.Y. City Transit Auth., No. 02-CVWL

539159,

at

*2

n.1

(E.D.N.Y.

Feb.

16,

2007)

(“Proceedings before the magistrate judge are not a trial run,
after which litigants should feel free to add ‘to the record in
bits and pieces depending upon the rulings or recommendation they
receive[ ]” (quoting Flynn v. Mark Contracting Corp., No. 01-CV8227, 2004 WL 1859789, at *1 (E.D.N.Y. Jul. 23, 2004)).

Having

reviewed Judge Brown’s R&R, the Court finds it to be well-reasoned
and free from clear error. Therefore, Judge Brown’s R&R is adopted
in its entirety.

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CONCLUSION
Judge Brown’s R&R (Docket Entry 88) is ADOPTED in its
entirety and Plaintiff’s Damages Motion (Docket Entry 82) is
GRANTED.

The Clerk of the Court is therefore directed to enter

judgment in favor of Plaintiff and against Defendant according to
the calculations within Plaintiff’s Motion for Damages (Docket
Entry 82).

Further, the Clerk of the Court is directed to

TERMINATE Plaintiff’s alternative damages motion (Docket Entry
85).
SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

September
22 , 2016
Central Islip, New York

8