Charney et al v. Zimbalist et al

Filing 365

ORDER ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE for 361 Report and Recommendation: I adopt Judge Gorenstein's report and recommendation. (Dkt. No. 361). The Clerk shall enter judgment for the plaintiffs in the amount of $1,382,083.01 and mark the case closed. (Signed by Judge Alvin K. Hellerstein on 8/19/2016) (tn)

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SCOTT CIIARNEY, ET AL,
ORDER ADOPTING THE
REPORT AND
RECOMMENDATION OF THE
MAGISTRATE JUDGE

Plaintiffs,
-againstCARLA ZIMBALIST, ET AL,

07 Civ. 6272 (AKH)
Respondents.

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ALVIN K. HELLERSTEIN, U.S.D.J.:
This case comes to me upon the Report and Recommendation ("R&R") of United
State Magistrate Judge Gabriel W. Gorenstein, and timely objections by defendant. As fully
recounted in the R&R, plaintiffs brought claims for federal securities fraud and common law
fraud under New York law, among others, against Jennifer Wilkov. Wilkov's liability was
previously resolved in a prior decision, see Charney v. Zimbalist, 2015 WL 4597538 (S.D.N.Y.
July 30, 2015), adopting in part 2014 WL 5064860 (S.D.N.Y. Sept. 29, 2014), and the plaintiffs
now move for summary judgment on the amount of damages to be entered against Wilkov.
Judge Gorenstein recommended that the plaintiffs' motion for damages be granted against
defendant Wilkov in the amount of $1,382,083.01. (R&R, July 26, 2016, Dkt. No. 361.)
Defendant filed her objections on August 12, 2016. (Dkt. No. 364.)
The district court reviews de novo the portions of a magistrate judge's report to
which the parties raise objections. See 28 U.S.C. § 636; Fed. R. Civ. P. 72; see, e.g., Cardell
Fin. Corp. v. Suchodolksi Associates, Inc., 896 F. Supp. 2d 320, 324 (S.D.N.Y. 2012) (citing
Thomas v. Arn, 474 U.S. 140, 149 (1985)). A district judge may accept, set aside, or modify the

findings and recommendations of a magistrate judge. Cardell, 896 F. Supp. 2d at 324. Upon de
novo review of Judge Gorenstein's R&R, I hold that Defendant's objections are without merit.
Judge Gorenstein thoroughly discussed the evidence that supported the
calculation of damages. He noted that the plaintiffs filed affidavits detailing the amounts of their
investment, the amounts recovered as restitution from the District Attorney's office and from
Safe Horizon, and the amounts received from Defendant's former employer, Ameriprise
Financial, Inc, in a confidential settlement. The plaintiffs also supplied spreadsheets calculating
the prejudgment interest owed to each. New York state law allows that interest can accrue "from
the earliest ascertainable date the cause of action existed," see N.Y. CPLR § 5001, but plaintiffs
only calculated interest from the date of Wilkov's final investment. They reduced the principal
based on their earlier recoveries, in restitution and settlement, according to dates prior to their
actual receipt of these monies, a simplification that reduces the amount of damages. Defendant
does not raise any specific objections to the damages calculations in the R&R, beyond loose
assertions that the plaintiffs have not provided sufficient proof of their investments. Judge
Gorenstein noted that Wilkov has not contested these amounts with any admissible evidence, nor
does Wilkov point this court to any contradictory evidence. Wilkov does not argue that Judge
Gorenstein erred in his calculation, or that there was any error in the plaintiffs' submissions or
their process of calculation, and I thus adopt Judge Gorenstein's finding of damages in the total
amount of $1,382,083.01. [See Dkt. No. 355]
Defendant's other arguments are couched as objections, but are primarily aimed at
my previous order addressing Wilkov's liability and granting summary judgment on all issues
except damages to the plaintiffs. See Charney, 2015 WL 4597538. Wilkov re-argues the issues
that were there resolved, asserting that she did not have knowledge of the scheme, that plaintiffs

did not prove any reliance on her statements, and thus that plaintiffs should not have been
granted summary judgment on liability. She also contends that she "did not benefit from or
enjoy any of the monies" and that she should not be responsible for any damages beyond the
restitution she has already paid. None of these arguments addresses the contents of the R&R,
and they do not cause me to reconsider my prior order resolving the parties cross-motions for
summary judgment.
Accordingly, I adopt Judge Gorenstein's report and recommendation. (Dkt. No.
361) The Clerk shall enter judgment for the plaintiffs in the amount of $1,3 82,083.01 and mark
the case closed.
SO ORDERED.
Dated:

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