Westchester Fire Insurance Company v. Annex General Contracting, Inc. et al

Filing 47

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATION; Judge Tomlinson's R&R (Docket Entry 44) is ADOPTED in its entirety and Plaintiff's motion for summary judgment (Docket Entry 35) is GRANTED. The Court is directed to enter judgment in favor of Plaintiff and against Defendants in the amount of $639,574.73, plus prejudgment interest at a rate of 9% per annum from June 14, 2014 through the date judgment is entered. Plaintiff's request for attorney fees is DENIED WITHO UT PREJUDICE. Plaintiff is directed to serve a copy of this Memorandum & Order on Defendants and file proof of service. The Clerk of the Court is further directed to mark this matter CLOSED. So Ordered by Judge Joanna Seybert on 8/15/2016. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
WESTCHESTER FIRE INSURANCE COMPANY,
Plaintiff,
-against-

MEMORANDUM & ORDER
14-CV-5747(JS)(AKT)

ANNEX GENERAL CONTRACTING, INC. and
STEVEN J. SAGGESE,

Defendants.
---------------------------------------X
APPEARANCES
For Plaintiff:
Richard B. Demas, Esq.
Susanna Requets, Esq.
Gottesman, Wolgel, Flynn,
Weinberg & Lee, P.C.
11 Hanover Square
New York, New York 10005
For Defendants:
Stephen J. Saggese

Steven J. Saggese, pro se
3856 Nansemond Parkway
Suffolk, VA 23435

Annex General
Contracting, Inc.

No appearances.

SEYBERT, District Judge:
Pending

before

the

Court

is

plaintiff’s

motion

for

summary judgment (Docket Entry 35) and Magistrate Judge A. Kathleen
Tomlinson’s Report and Recommendation (“R&R”), recommending that
this Court grant plaintiff’s motion, (Docket Entry 44).

For the

following reasons, the Court ADOPTS Judge Tomlinson’s R&R in its
entirety.

BACKGROUND
Plaintiff

Westchester

Fire

Insurance

Company

(“Plaintiff”) commenced this action on October 1, 2014 against
defendants Annex General Contracting, Inc. (“Annex”) and Steven J.
Saggese

(“Saggese,”

and

together

with

Annex,

“Defendants”).

Plaintiff alleges that it is entitled to recover bond losses, fees,
costs, and expenses, which Plaintiff incurred serving as a surety
on behalf of Annex.
On
judgment

(See generally Complaint.)

December

(Docket

15,

Entry

2015,

35),

and

Plaintiff
on

moved

February

for

19,

summary

2016,

the

undersigned referred Plaintiff’s motion to Judge Tomlinson for an
R&R on whether the motion should be granted, (Docket Entry 41).
On July 15, 2016, Judge Tomlinson issued her R&R.
Docket

Entry

44.)

The

R&R

recommends

that

the

Court

(R&R,
grant

Plaintiff’s motion for summary judgment against defendant Saggese
and issue a default judgment against defendant Annex. (R&R at 44.)
The R&R further recommends that judgment be entered on behalf of
Plaintiff against Defendants in the amount of $639,574.73, and
that Plaintiff be awarded prejudgment interest calculated by the
Clerk of the Court at a rate of 9% per annum from June 14, 2014
through the date of the judgment.

(R&R at 44.)

Finally, the R&R

recommends that the Court give Plaintiff an opportunity to submit
additional documentation to support of its request for attorneys’
fees.

(R&R at 44.)
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DISCUSSION
In reviewing an R&R, a district court “may accept,
reject,

or

modify,

recommendations

made

in
by

whole
the

or

in

part,

magistrate

the

findings

judge.”

28

and

U.S.C.

§ 636(b)(1)(C). If no timely objections have been made, the “court
need only satisfy itself 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) (internal quotation marks and citation omitted).
Objections were due within fourteen days of service of
the R&R.

The time for filing objections has expired, and no party

has objected.

Accordingly, all objections are hereby deemed to

have been waived.
Upon careful review and consideration, the Court finds
Judge Tomlinson’s R&R to be comprehensive, well-reasoned, and free
of clear error, and it ADOPTS the R&R in its entirety.
CONCLUSION
Judge Tomlinson’s R&R (Docket Entry 44) is ADOPTED in
its entirety and Plaintiff’s motion for summary judgment (Docket
Entry 35) is GRANTED.
favor

of

Plaintiff

The Court is directed to enter judgment in
and

against

Defendants

in

the

amount

of

$639,574.73, plus prejudgment interest at a rate of 9% per annum
from

June

14,

2014

through

the

date

judgment

is

entered.

Plaintiff’s request for attorney fees is DENIED WITHOUT PREJUDICE,
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however,

Plaintiff

requesting

attorney

is

invited
fees

to

that

file
is

an

additional

supported

documentation, as detailed in Judge Tomlinson’s R&R.

by

motion

adequate

Plaintiff is

directed to serve a copy of this Memorandum & Order on Defendants
and file proof of service.

The Clerk of the Court is further

directed to mark this matter CLOSED.

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

August
15 , 2016
Central Islip, New York

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