Kost v. Louis Mosier Trust et al
SUMMARY ORDER - ORDERED that Kost' s motion for default judgment (Dkt. No. 10) is GRANTED; and it is further ORDERED that the Clerk is directed to enter judgment against the Louis Mosier Trust, and Craig Mosier, individually and in hi s capacity as Trustee of the Louis Mosier Trust, in the amount of $156,268.83, plus $32,816.45, and $38.53 per diem from April 30, 2014 until judgment is entered, in prejudgment interest, plus any applicable bill of costs; and it is fu rther ORDERED that the note and mortgage recorded in the Ontario County Clerks Office, bearing instrument number 2951 and serial number 4908 recorded on March 19, 1998 at 2:00 P.M. at Book 1009 of Mortgages, Page 155 and as continues thereafter, in the face amount of $275,000 and listing Michael G. Kost, Sr. as mortgagor and Mosier Enterprises, Inc., a New York corporation, and Louis Mosier as mortgagee is SATISFIED and to be DISCHARGED of record; and it is further. Signed by Chief Judge Gary L. Sharpe on 9/3/2014. (jel, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
MICHAEL G. KOST, SR.,
LOUIS MOSIER TRUST et al.,
Plaintiff Michael G. Kost, Sr. commenced this action against
defendants Louis Mosier Trust, Craig Mosier, individually and in his
capacity as Trustee of the Louis Mosier Trust, and John and Jane Doe,
unidentified trustees of the Trust, alleging unjust enrichment and seeking to
recover excess funds paid to the Trust related to a real property purchase
in Canandaigua, New York. (See generally Compl., Dkt. No. 1.) Pending
is Kost’s motion for default judgment. (Dkt. No. 10.) For the reasons that
follow, Kost’s motion is granted.
Briefly, the background of the instant action is as follows. In March
1998, Kost purchased real property from Mosier Enterprises, Inc. for a
purchase price of $302,250. (Compl. ¶¶ 2-3.) In connection with the
purchase, Kost transferred to Mosier Enterprises cash and a note in the
face amount of $275,000, along with a mortgage as security, which was to
be paid over the course of ten years with monthly payments of $3,634.15. 1
(Id. ¶¶ 4-7.) Kost made each scheduled payment for the entire ten-year
term, but continued to make monthly payments until December 2011, when
he realized that there was no longer a valid underlying obligation. ( Id.
On January 28, 2014, after unsuccessful attempts to recover the
overpayments, which total $156,268.83, 2 (Dkt. No. 10, Attach. 1 ¶ 9), Kost
commenced this action, (see generally Compl.). Defendants were served
with process on March 4. (Dkt. Nos. 4-6.) However, defendants have not
yet filed an appropriate responsive pleading or otherwise appeared in this
action, and the time to do so has expired. See Fed. R. Civ. P. 12(a). On
March 25, Kost filed a request for entry of default against the Louis Mosier
According to the note and mortgage, the payments were to be made to Mosier
Enterprises, unless Kost was given written notice indicating otherwise. (Compl. ¶ 8.) In April
2008, following the death of Louis Mosier, Kost received a notice stating that further payments
on the note should be made to the Trust, which Kost did up until December 2011. (Id. ¶¶ 1113.)
The court notes a discrepancy between the total amount of overpayments sought in
the complaint—$163,563.75, (Compl. ¶ 14)—and that sought in the pending
motion—$156,268.86, (Dkt. No. 10, Attach. 1 ¶ 9). It appears that the reason for this disparity
is that, in the complaint, Kost claims that he made forty-five extra payments, (Compl. ¶ 14), but
the documentary evidence in support of Kost’s motion demonstrates that Kost made only fortythree extra payments, (Dkt. No. 10, Attach. 5). Thus, the court finds that $156,268.83 is the
correct total of overpayments (approximately $3,634.15 X 43).
Trust, and Craig Mosier, individually and in his capacity as Trustee of the
Louis Mosier Trust, pursuant to Federal Rule of Civil Procedure 55 and
Local Rule 55.1, (Dkt. No. 7), which the Clerk entered on March 31, (Dkt.
No. 9). Kost now moves for a default judgment, seeking: (1) monetary
relief in the amount of $156,268.86; (2) a declaration that the mortgage on
the real property has been satisfied and is to be discharged of record; and
(3) pre-judgment interest. (Dkt. No. 10, Attach. 1 ¶¶ 9-10.) Defendants still
have not responded.
“While 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.” Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973
F.2d 155, 158 (2d Cir. 1992). In determining the propriety of damage
claims, however, a hearing is not required where the court is able to “rely
on detailed affidavits or documentary evidence . . . to evaluate the
proposed sum.” Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40
(2d Cir. 1989). Upon a review of Kost’s unopposed and detailed
submissions and calculations, the court finds that his claim for damages is
In support of his motion, Kost submitted an affidavit, and attached a
copy of the warranty deeds, note and mortgage, and recording pages for
the real property purchased in 1998. (Dkt. No. 10, Attach. 2; Dkt. No. 10,
Attach. 3.) He also submitted a copy of an amortization schedule for the
note, which shows each of the payments over the life of the obligation, and
demonstrates that the note was fully satisfied in March 2008. (Dkt. No. 10,
Attach. 4.) Finally, Kost submitted copies of M&T Bank statements, which
show that he continued to make forty-three additional payments of
approximately $3,634.15 between April 2008 and December 2011, totaling
$156,268.83 in overpayments. (Dkt. No. 10, Attach. 5.) Accordingly, Kost
is entitled to $156,268.83.
Kost also seeks prejudgment interest pursuant to N.Y. C.P.L.R.
§ 5001. (Dkt. No. 10, Attach. 1 ¶ 10.) In diversity cases such as this one,
the award of prejudgment interest is a substantive issue, governed by New
York law. See Gov’t Emps. Ins. Co. v. IAV Med. Supply, Inc., No. 11-CV4261, 2013 WL 764735, at *8 (E.D.N.Y. Feb. 8, 2013). Section 5001 of
New York Civil Practice Law and Rules provides, in pertinent part, that
“[i]nterest shall be recovered upon a sum awarded . . . because of an act
. . . depriving or otherwise interfering with title to, or possession or
enjoyment of, property.” N.Y. C.P.L.R. § 5001(a); Beeck v. Costa, 39 Misc.
3d 347, 365 (Sup. Ct., N.Y. Cnty. 2013) (holding that “[t]he award of
prejudgment interest in cases of . . . unjust enrichment . . . is proper where
a defendant wrongly held a plaintiff’s money” (citations omitted)). Courts
ordinarily apply a statutory interest rate of nine percent per annum in
determining prejudgment interest under New York law. See N.Y. C.P.L.R.
§ 5004. Under § 5001(b), interest may be calculated from “the earliest
ascertainable date the cause of action existed.” N.Y. C.P.L.R. § 5001(b).
However, “[w]here . . . damages were incurred at various times, interest
shall be computed . . . upon all of the damages from a single reasonable
intermediate date.” Id. To that end, courts have “wide discretion in
determining a reasonable date from which to award pre-judgment interest.”
Conway v. Icahn & Co., 16 F.3d 504, 512 (2d Cir. 1994).
Here, because Kost incurred damages over a three-year period, he
requests, and the court employs, the latter calculation method. (Dkt. No.
10, Attach. 1 ¶ 10.) Kost requests prejudgment interest calculated “from
the mid-point of the damage[s] period (January 2010)” up to the entry of
judgment, totaling $32,752.24 plus $38.53 per day from April 30, 2014 up
until the entry of judgment. 3 (Id.) The court, however, finds that the point
when Kost realized that he had overpaid, and that the underlying obligation
was fully satisfied, is a “reasonable intermediate date” for purposes of
calculating prejudgment interest. Accordingly, the intermediate date by
which the court will calculate prejudgment interest is January 1, 2012. Kost
is thus entitled to $32,816.45, plus $38.53 per diem from April 30, 2014
until judgment is entered, in prejudgment interest under N.Y. C.P.L.R. §
ACCORDINGLY, it is hereby
ORDERED that Kost’s motion for default judgment (Dkt. No. 10) is
GRANTED; and it is further
ORDERED that the Clerk is directed to enter judgment against the
Louis Mosier Trust, and Craig Mosier, individually and in his capacity as
Trustee of the Louis Mosier Trust, in the amount of $156,268.83, plus
$32,816.45, and $38.53 per diem from April 30, 2014 until judgment is
The court notes an apparent mathematical error in Kost’s request. If the court were to
calculate the prejudgment interest from January 2010, applying a nine percent interest rate on
the principal sum of $156,268, the prejudgment interest would amount to approximately
$60,944.70. This error, however, is of no moment, because, as discussed below, the court will
use a different midway point—January 2012—which happens to total $32,816.45, almost the
exact amount sought in Kost’s motion, (Dkt. No. 10, Attach. 1 ¶ 10).
Interest equals principal times rate times time. Here, $32,816.45 = $156,268.83 X .09
X 28 (months).
entered, in prejudgment interest, plus any applicable bill of costs; and it is
ORDERED that the note and mortgage recorded in the Ontario
County Clerk’s Office, bearing instrument number 2951 and serial number
4908 recorded on March 19, 1998 at 2:00 P.M. at Book 1009 of Mortgages,
Page 155 and as continues thereafter, in the face amount of $275,000 and
listing Michael G. Kost, Sr. as mortgagor and Mosier Enterprises, Inc., a
New York corporation, and Louis Mosier as mortgagee is SATISFIED and
to be DISCHARGED of record; and it is further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this Summary Order to
IT IS SO ORDERED.
September 3, 2014
Albany, New York
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