Eastern Regional Medical Center, Inc. et al v. Evanciew

Filing 10

MEMORANDUM-DECISION AND ORDER granting 9 Motion for Default Judgment: The Court hereby ORDERS that Plaintiffs' motion for default judgment (Dkt. No. 9) is GRANTED; and the Court further ORDERS that the Clerk of the Court shall enter judgment in favor of Plaintiffs and against Defendant in the amount of $324,149.51; and the Court further ORDERS that Plaintiffs are entitled to post-judgment interest accruing at the statutory rates discussed above; and the Court further ORDERS that P laintiffs shall serve a copy of this Memorandum-Decision and Order on Defendant; and the Court further ORDERS that the Clerk of the Court shall enter judgment in Plaintiffs' favor and close this case. Signed by U.S. District Judge Mae A. D'Agostino on 1/31/2017. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
EASTERN REGIONAL MEDICAL CENTER,
INC., and CANCER TREATMENT CENTERS OF
AMERICA PROFESSIONAL CORPORATION
OF PENNSYLVANIA, P.C.,
Plaintiffs,
vs.

6:16-CV-331
(MAD/ATB)

SALLY EVANCIEW,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

STRADLEY RONON STEVENS & YOUNG, LLP
100 Park Avenue
Suite 3210
New York, New York 10017
Attorneys for Plaintiff

SCOTT H. BERNSTEIN, ESQ.

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On March 21, 2016, Plaintiffs commenced this diversity action alleging breach of
contract, quantum meruit, and promissory estoppel. See Dkt. No. 1. Defendant was served with
copies of the summons and complaint on March 29, 2016. See Dkt. No. 5. Upon Defendant's
failure to file an answer, motion, or other responsive pleadings within twenty-one days from the
date of service, Plaintiffs requested entry of default, which the Clerk of the Court entered on April
27, 2016. See Dkt. Nos. 6 & 7.
Currently before the Court is Plaintiffs' motion for default judgment. See Dkt. No. 9.
II. BACKGROUND

Plaintiffs are corporations organized and incorporated pursuant to the laws of
Pennsylvania, with their principal place of business at 1331 East Wyoming Avenue, Philadelphia,
Pennsylvania 19124. See Dkt. No. 1 at ¶¶ 1 & 2. Defendant Sally Evanciew is a citizen of the
state of New York, residing in Taberg, New York. See id. at ¶ 3.
From approximately August 2015 through October 2015, Defendant's husband, who is
now deceased, sought medical treatment from Plaintiffs. See id. at ¶ 6. In connection with this
treatment, Plaintiffs entered into a Patient and Spouse Payment Agreement (the "Payment
Agreement") with Defendant and her husband. See id. at ¶¶ 7-8.
Pursuant to the Payment Agreement, Defendant and her husband agreed to the following:
1. Payment of Charges. Patient and Spouse hereby each agree to
be unconditionally and personally liable for payment for all services
rendered Patient by Hospital and PCP.1 Spouse hereby agrees to
guaranty payment to Hospital and PCP of any and all amounts owed
by Patient.
*****
2. "Out-of-Network" Acknowledgment; Assignment of Benefits.
. . . Patient hereby agrees to assign to ERMC and PCP any and all
benefits payable under any health insurance plan, covering
Patient[.]
*****
3. Pay Over of Checks Received. To the extent Patient or Spouse
receives one or more checks or drafts from a third party payor
(including an insurance company or health plan) relating to services
provided by Hospital or PCP, Patient and Spouse hereby agree to
immediately endorse such checks and drafts and deliver them to
Hospital; Patient and Spouse hereby covenant that in no event will
they ever negotiate, cash or deposit any such checks or drafts,
except to and for the benefit of Hospital. After receipt of such

Throughout the Payment Agreement, Plaintiff Eastern Regional Medical Center, Inc. is
referred to as the "Hospital" or "ERMC," while Cancer Treatment Centers of America
Professional Corporation of Pennsylvania, Inc. is referred to as "PCP." Dkt. No. 1-1 at 2.
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endorsed checks and drafts, Hospital will credit Patient's account
for the amount of such payment.
Dkt. No. 1-1 at 2. Defendant further agreed that she would reimburse Plaintiffs for the costs and
expenses, including attorneys' fees, of enforcing the Payment Agreement. See id. at 2-3. Further,
in the event that Defendant violated any provision of paragraph three of the Payment Agreement
relating to checks or drafts from a third party payor, the Payment Agreement provides that
Plaintiffs "shall have, in addition to all other rights, the right to file suit against Patient and
Spouse on the theory of conversion[.]" Id.
In reliance on the signed Payment Agreement, Plaintiffs provided medical services to
Defendant's spouse the Hospital from August 2015 through October 2015. See Dkt. No. 1 at ¶ 14.
Plaintiffs billed Defendant and her spouse for the costs of the services provided. See id. at ¶ 15.
Despite demand for payment, Plaintiffs claim that Defendant has failed to pay in full pursuant to
the Payment Agreement for the services provided. See id. at ¶ 16. According to the complaint,
Plaintiffs are owed not less than $325,271.51 for those services. See id. at ¶ 17. Additionally,
Plaintiffs claim that, upon information and belief, "Patient's health insurer(s) or health plan(s) has
sent checks or drafts to Patient and/or Defendant as payment for the medical services provided by
Plaintiffs." Id. at ¶ 18. Further, Plaintiffs contend that, despite receiving these checks or drafts,
Defendant has failed to endorse or deliver all such checks or drafts to Plaintiffs in order to pay the
outstanding invoices as required by the Payment Agreement. See id. at ¶ 19.
Currently before the Court is Plaintiffs' unopposed motion for default judgment. See Dkt.
No. 9.
III. DISCUSSION
"Generally, 'Federal Rule of Civil Procedure 55 provides a two-step process that the Court
must follow before it may enter a default judgment against a defendant.'" United States v.
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Simmons, No. 5:10-CV-1272, 2008 WL 685498, *2 (N.D.N.Y. Mar. 2, 2012) (quoting Robertson
v. Doe, No. 05-CV-7046, 2008 WL 2519894, *3 (S.D.N.Y. June 19, 2008)). "'First, under Rule
55(a), when a party fails to "plead or otherwise defend . . . the clerk must enter the party's
default.""' Id. (quotation omitted); see also Fed. R. Civ. P. 55(a). "'Second, pursuant to Rule
55(b)(2), the party seeking default is required to present its application for entry of judgment to
the court."' Id. (quotation omitted). "'Notice of the application must be sent to the defaulting
party so that it has an opportunity to show cause why the court should not enter a default
judgment."' Id. (quotation omitted); see also Fed. R. Civ. P. 55(b)(2).
"When a default is entered, the defendant is deemed to have admitted all of the wellpleaded factual allegations in the complaint pertaining to liability." Bravado Int'l Group Merch.
Servs. v. Ninna, Inc., 655 F. Supp. 2d 177, 188 (E.D.N.Y. 2009) (citing Greyhound Exhibitgroup,
Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992)). "While a default judgment
constitutes an admission of liability, the quantum of damages remains to be established by proof
unless the amount is liquidated or susceptible of mathematical computation." Flaks v. Koegel,
504 F.2d 702, 707 (2d Cir. 1974) (citations omitted); see also Bravado Int'l, 655 F. Supp. 2d at
189-90 (citation omitted). "[E]ven upon default, a court may not rubber-stamp the non-defaulting
party's damages calculation, but rather must ensure that there is a basis for the damages that are
sought." Overcash v. United Abstract Group, Inc., 549 F. Supp. 2d 193, 196 (N.D.N.Y. 2008)
(citing Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999)). "The
burden is on the plaintiff to establish its entitlement to recovery." Bravado Int'l, 655 F. Supp. 2d
at 189 (citing Greyhound Exhibitgroup, Inc., 973 F.2d at 158). "While 'the court must ensure that
there is a basis for the damages specified in a default judgment, it may, but need not, make the
determination through a hearing.'" Id. at 190 (quotation omitted).
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In the present matter, the Court finds that Plaintiffs are entitled to an entry of default
judgment against Defendant. Defendant has not answered or otherwise responded to Plaintiffs'
summons and complaint and the time allowed to do so has expired. See Fed. R. Civ. P. 12(a).
Further, Plaintiffs properly served Plaintiff by delivering a copy to a person of suitable age and
discretion at Defendant's dwelling and, thereafter, completed serving by mailing a copy of the
documents on March 30, 2016. See Dkt. No. 5. Moreover, in conformity with Local Rule 55.2,
Plaintiffs have amply demonstrated that Defendant is not in military service, an infant or an
incompetent. See Dkt. No. 9-2 at ¶ 10; Dkt. No. 5. Also, Plaintiffs have plausibly alleged that
they are entitled to relief for Defendant's breach of the Payment Agreement. As such, the Court
finds that Plaintiffs have met their burden and is entitled to an entry of default judgment as to
liability.
Damages may be awarded in a default judgment where the plaintiff's complaint is for a
sum certain. See Fed. R. Civ. P. 55(b)(1). "A sum certain is a sum which is susceptible to
reliable computation or determined by the court after an accounting." Insurance Co. of North
America v. S/S "Hellenic Challenger", 88 F.R.D. 545, 548 (S.D.N.Y. 1980) (citations omitted). A
hearing to determine damages is left to the sound discretion of the court. See Fustok v.
Conticommodity Services, Inc., 873 F.2d 38, 40 (2d Cir. 1989). The court may rely solely on
"detailed affidavits and documentary evidence" for purposes of evaluating the sum of damages, as
it does in the current case. Id.; see also Action S.A. v. Marc Rich & Co., 951 F.2d 504, 508 (2d
Cir. 1991); see also Oy Saimaa Lines Logistics Ltd. v. Mozaica-New York, Inc., 193 F.R.D. 87, 89
(E.D.N.Y. 2000).
In the present matter, relying on the affidavits and documentary evidence that Plaintiffs
have provided, the Court finds that Plaintiffs are entitled to $324,149.51 in compensatory
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damages.2 In the affidavit of Stacey Morrissey, who works for Plaintiffs as the "Recovery
Services Supervisor," Ms. Morrissey confirms that the above amount is outstanding. See Dkt. No.
9-1 at ¶¶ 6-7. This assertion is supported the outstanding invoices, which are attached as an
exhibit to Ms. Morrissey's affidavit. See Dkt. No. 9-1 at Exhibit "A." Accordingly, the Court
grants Plaintiffs' motion for default judgment in the amount of $324,149.51.3
Moreover, pursuant to 28 U.S.C. § 1961(a), Plaintiffs are also entitled to post-judgment
interest, which they have sought here. The rate of such interest, as set forth in section 1961(a),
"shall be calculated from the date of entry of judgment, at a rate equal to the weekly average 1year constant maturity Treasury yield, as published by the Board of Governors of the Federal
Reserve System, for the calendar week preceding the date of the judgment." 28 U.S.C. § 1961(a)
(internal footnote omitted).
IV. CONCLUSION
After carefully reviewing Plaintiff’s submissions and the applicable law, and for the
reasons stated herein, the Court hereby
ORDERS that Plaintiffs' motion for default judgment (Dkt. No. 9) is GRANTED; and the
Court further
ORDERS that the Clerk of the Court shall enter judgment in favor of Plaintiffs and
against Defendant in the amount of $324,149.51; and the Court further

The Court notes that this amount is slightly lower than the amount stated in the
complaint.
2

In their motion, Plaintiffs indicate that they are waiving their right to seek an award of
attorneys' fees, costs and prejudgment interest against Defendant. See Dkt. No. 9-1 at ¶ 8; Dkt.
No. 9-2 at ¶ 12.
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ORDERS that Plaintiffs are entitled to post-judgment interest accruing at the statutory
rates discussed above; and the Court further
ORDERS that Plaintiffs shall serve a copy of this Memorandum-Decision and Order on
Defendant; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Plaintiffs' favor and close
this case.
IT IS SO ORDERED.
Dated: January 31, 2017
Albany, New York

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