American Empire Surplus Lines Insurance Company v. Iron, Inc. et al

Filing 14

ORDER re 12 Motion for Default Judgment. SO ORDERED that the Court GRANTS the motion for default judgment against the Iron Entities and finds them jointly and severally liable in the amount of $198,062.28. The Court DENIES plaintiff's re quest for attorney's fees. The Clerk of the Court is respectfully directed to enter judgment, jointly and severally, against defendants Iron, Inc., and Pre-Fab Construction Services, Inc., in the amount of $198,062.28. Ordered by Judge Joan M. Azrack on 1/10/2017. (Florio, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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AMERICAN EMPIRE SURPLUS LINES INSURANCE
COMPANY,

For Online Publication Only

Plaintiff,
ORDER
15-CV-7048 (JMA) (SIL)

v.
IRON, INC., and PRE-FAB CONSTRUCTION
SERVICES, INC.,

Defendants.
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AZRACK, United States District Judge:

FILED 
CLERK 

1/10/2017 3:56 pm

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

Plaintiff American Empire Surplus Lines Insurance Company has filed a motion for
default judgment against defendants Iron, Inc., and Pre-Fab Construction Services, Inc.
(collectively, the “Iron Entities”). The Iron Entities were properly served and have failed to
appear in this suit. After reviewing the plaintiff’s motion and supporting papers, the Court
GRANTS the motion for default judgment against the Iron Entities and finds them jointly and
severally liable in the amount of $198,062.28.

The Court DENIES plaintiff’s request for

attorney’s fees.
A. Liability
When a defendant defaults, the Court is required to accept all of the factual allegations in
the complaint as true and draw all reasonable inferences in the plaintiff’s favor. Finkel v.
Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009). However, the Court also must determine whether
the allegations in the complaint establish the defendant’s liability as a matter of law. Id.
Plaintiff alleges that the Iron Entities breached their insurance contract with plaintiff
when they failed to pay a required additional premium. The allegations in the complaint are
sufficient to establish the Iron Entities’ liability for breach of contract.

B. Damages
“‘[W]hile a party’s default is deemed to constitute a concession of all well pleaded
allegations of liability, it is not considered an admission of damages.’” Bricklayers & Allied
Craftworkers Local 2, Albany, N.Y. Pension Fund v. Moulton Masonry & Const., LLC, 779 F.3d
182, 189 (2d Cir. 2015) (quoting Cement & Concrete Workers Dist. Council Welfare Fund v.
Metro Found. Contractors, Inc., 699 F.3d 230, 234 (2d Cir. 2012)). The Court must conduct an
inquiry to “ascertain the amount of damages with reasonable certainty.” Credit Lyonnais Sec.,
Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999) (citing Transatlantic Marine Claims Agency,
Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997)). “There must be an evidentiary
basis for the damages sought by plaintiff, and a district court may determine there is sufficient
evidence either based upon evidence presented at a hearing or upon a review of detailed
affidavits and documentary evidence.” Cement & Concrete Workers Dist. Council Welfare
Fund, 699 F.3d at 234. District courts may hold an inquest by affidavit without a hearing so long
as the court has “ensured that there was a basis for the damages specified in the default
judgment.” Transatlantic Marine, 109 F.3d at 111.
The affidavits and letters submitted with plaintiff’s motion for default judgment establish to
a reasonable certainty that plaintiff is entitled to $178,941.88 in damages.
Plaintiff has also requested interest.

Under New York law, plaintiff is entitled to

prejudgment interest of 9% per annum, running from the date of the breach. N.Y. C.P.L.R.
§ 5004. Per diem interest works out to $44.12 per day. Here, the date of the breach is November
17, 2015. (See Ltr. dated 10/28/2015, ECF No. 12-6.) Accordingly, plaintiff is entitled to
$18,530.40 in interest.

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Plaintiff has also requested attorney’s fees. Plaintiff, however, has not identified any
statutory or contractual basis for an attorney’s fee award in this case. Accordingly, plaintiff’s
request for attorney’s fees is denied. Plaintiff, however, is awarded $590 in costs for the filing
and service of the complaint.
C. CONCLUSION
The Clerk of the Court is respectfully directed to enter judgment, jointly and severally,
against defendants Iron, Inc., and Pre-Fab Construction Services, Inc., in the amount of
$198,062.28.
SO ORDERED.
Dated: January 10, 2017
Central Islip, New York

/s/
(JMA)
JOAN M. AZRACK
UNITED STATES DISTRICT JUDGE

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