Safflane Holdings Ltd. et al v. Gagosian Gallery, Inc.

Filing 44

AFFIDAVIT of Aaron Richard Golub in Support re: 43 Order to Show Cause,, 42 Certificate of Clerk. Document filed by Safflane Holdings Ltd., Robert Wylde. (Attachments: # 1 Exhibit Exhibit Covers, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4, # 6 Exhibit Exhibit 5, # 7 Exhibit Exhibit 6, # 8 Exhibit Exhibit 7, # 9 Exhibit Exhibit 8, # 10 Exhibit Exhibit 9, # 11 Exhibit Exhibit 10, # 12 Exhibit Exhibit 11)(Golub, Aaron)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------X
SAFFLANE HOLDINGS LTD.r and
ROBERT WYLDEr
Plaintiffs
- against -

GAGOSIAN GALLERYr
CHARLES COWLESr

11-CIV-1679

(DLC)

ORDER TO SHOW CAUSE
FOR DEFAULT JUDGMENT
AGAINST DEFENDANT
CHARLES COWLES

INC'r and

Defendants.

--------------------------------------x
Upon the affidavit
day of Septemberr
all prior papers
ORDEREDr

of Aaron Richard

2011 and the exhibits
and proceedings

Golubr
annexed

heretofore

that the above named defendant

sworn to the 9th
theretor

had hereinr
Charles

Courthouser

500 Pearl Streetr

State of New Yorkr on October
thereof

14r

it is

Cowles

show

15Br

United

cause before a motion term of this Courtr in courtroom
States

and upon

in the CitYr County and

2011 at 12:00 o'clock

in the noon

or as soon thereafter

as counsel may be nea rd , why an Order

should not be issued pursuant

to Rule 54(b) and Rule 55(b) of the

Federal
Holdings

r

Rules of Civil Procedure
Ltd'r and Robert

Wylder

in favor of plaintiffs
for the following

Safflane

relief:

i.

Pursuant to FRCP Rule 55(b) (2), directing that a
defaul t judgment, as to liability, be entered against
defendant Charles Cowles; and

ii.

That the inquest to determine the level of damages
as to defendant Cowles shall await the time of trial
and shall be consolidated with the damages aspect
of the trial against non-defaulting
defendant
Gagosian Gallery, Inc.
1

and it is further
ORDERED
affidavit

v//

/3,

&('14 7/ A.&I/
DATED:

sf't'

At' J I

0'

clock in th~roon,

'4.-- <1 ~

, shall be deemed good and sufficient

4--, 71":;';'" )(

thereof.

Charles Cowles at his last

at 84 Mercer Street, New York, New York 10012 or his

on or before

Sue£-~

of a copy of this order and annexed

and exhibits upon the defendant

known address
~ounsel

that service

~"'71 ~-&j"J//;

4

•

New York, New York

~==~==~~

~IS~S~U~ED~.

S-Ci-~ 9 I

)&/1

t

2

service

GOLUB AFF.

AARON RICHARD GOLUB, ESQUIRE, PC
Attorneys for Plaintiffs
34 East 67th Street _3rd Floor
New York, New York 10065
ph: 212-838-4811
fx: 212-838-4869
ARG 6056
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

--------------------------------------x
SAFFLANE HOLDINGS
ROBERT WYLDE,

11-CIV-1679

(DLC)

LTD., and
Plaintiff,

AFFIDAVIT FOR
JUDGMENT BY DEFAULT

-againstGAGOSIAN GALLERY,
CHARLES COWLES

INC., and
Defendants.

--------------------------------------x
STATE OF NEW YORK
ss. :
COUNTY OF NEW YORK

AARON RICHARD
1.

GOLUB,

being duly sworn, deposes

and says:

I am a member of the Bar of this Court and am the principal

of Aaron Richard

Golub,

in the above-entitled

Esquire,

action

P.C., attorneys

and I am familiar

for plaintiffs
with all of the

facts and, cLr-cums t.arice s in this action.
"~ ... :;·'~~\':,t'..'.,i~;\~
'~'~4;::'~;~.~::'
~~t';:.:.

2.

!

I make this affidavit pursuant

to Rule 55.1 and 55.2 (b)

of the Civil Rules for the Southern District
2 of the Default Judgment
23, 2011), in support

of New York and Rule

Procedure of this Court

of plaintiffs'

default judgment against defendant

1

application

Charles Cowles

(Revised August
for entry of a
("CC"),

who is

not an infant

I

and to the best of my knowledge is not in the mili tary

or an incompetent

person.
FACTUAL

3.

This is an action

Gagosian

Gallery

I

BACKGROUND

to recover

sums owed by defendant

Inc. ("Gagosianll) and against CC as alleged in
II

the Corrected Second Amended Complaint

("Corrected SAC

in the secondl

tenthl twelfthl

fourteenth

defense

sixthl

causes of action

7 pars. 421
Gagosian

fourthl

491 551 621

may establish

721

eighthl

as more specifically
821 88 and 95.

adequate

be held liable

I

in whole or in part

statements

of Gagosianl

plaintiffs

in connection

4.

I

omissions

I

and/or

entered by the Court for

and/or CC

I

should

jointly and/or severallYI

of the subject matter

this Court has original

between

it under which CC would

CC.
Jurisdiction

§

with any

with any such causes of actionl

based on 28 U. S. C § 1332 (a) (1).

U.S.C.

in Ex.

To the extent that

for the acts

any judgment

be entered against Gagosian
or against

I

I

and

stated

facts in connection

to the causes of action against

(Ex. 7)

)

of this action

is

This is a civil action over which

jurisdiction

under the provisions

of 28

1332 (a) (2) as there is complete diversity of citizenship
I

all plaintiffsl

on the one hand

the otherl and the amount
thousand

dollars

Complete

diversity

in controversy

($75 000.00)
1

I

exclusive

I

exists between

2

and all defendants
exceeds

on

seventy-five

of interest

the parties

I

and costs.

in this action.

5.

The allegations

plaintiffs'
et al.

are made without prejudice

claims and defenses in The Metropolitan

v. Safflane

11-3143

herein

Holdings,

Ltd.,

et al.,

(DLC) (the "Met v. Safflane

6.

Complaint,

referred

to the Corrected
("Corrected

SAC")

HISTORY

This action was commenced

the Summons and Complaint

Case No. CV

facts herein.

PROCEDURAL
7.

S.D.N.Y.

dated July 23, 2011

(Ex. 7) for the background

Museumof Art,

action") .

This Court is respectfully

Second Amended

to

on March 10, 2011, by filing

("Complaint")

(Ex. 1).

The Complaint

did not name CC as a party and was duly served on defendant Gagosian.
8.

On May 13, 2011, a pre-trial

conference

this Court issued a Pre-Trial Scheduling
("Scheduling

Order")

was held and

Order dated May 16, 2011

(Ex. 2), which ordered,

inter alia,

i.

ii.

9.
Amended

Plaintiffs
2011j
and

to file an amended complaint by May 27,

No additional parties may be joined or pleadings
amended after July IS, 2011.

On June 10, 2011, plaintiff
Complaint

defendant

("FAC")

Gagosian.

filed and served the First

(Ex. 3) which was duly served on

The FAC did not name CC as a defendant.

10.

Gagosian

11.

Plaintiffs filed the Second Amended Complaint dated July

IS, 2011
12.

("SAC")

answered

(Ex. 5).

Plaintiffs'

the FAC on June 27, 2011

(Ex. 4).

The SAC named CC as a defendant.

requested

and were granted permission

by

Order dated July 19, 2011 (Ex. 6) to serve and file the Corrected

3

SAC

(Ex. 7) that corrected

errors

in the SAC.

defendant

2 0 11

The Corrected

(Ex . 8).

14.

PERSONALLY SERVED THE CORRECTED
SAC ON DEFENDANT CC

CC was deposed on July 13, 2011 and he testified

his address
p.

claims against

Defendant Gagosian answered the Corrected SAC on August

PLAINTIFF

9,

SAC asserted

typographical

CC.

13.
8,

minor non-substantive

is 84 Mercer

Street, New York, New York 10012

that
(Ex.

4:7-10).
15.

On July 20, 2011, the Clerk of Court issued a Summons

in a Civil Action,
16.

Courts

to defendant

On July 27, 2011, defendant

at his Mercer
17.

directed

Street address

CC was personally

served

(Ex. 10).

On August 10, 2011, proof of service was filed via the

electronic

filing system

("ECF").

of filing of the proof of service
calculated

CC (Ex. 10).

the date defendant

2011, to the present,

(Ex. 11), automatically

CC's answer

was due - August 17, 2011 (Ex. 11).

The ECF confirmation

to the Corrected

SAC

Between on or about July 27,

CC has not contacted

plaintiffs'

counsel

to request any extension and/ or adj ournment of the August 17, 2011
deadline to answer the Corrected SAC (Ex. 7).
the Corrected
18.

SAC and is currently

CC has not answered

in default.

Plaintiffs are seeking a default against only defendant

CC and a judgment against CC as to liability in favor of plaintiffs

4

pursuant to FRCP Rule 54 (b)1 and Rule 55 (a)2 for failing to answer
the Corrected

SAC by August

17, 2011

(Ex. 11).

PLAINTIFFS ARE ENTITLED TO THE ENTRY
OF DEFAULT JUDGMENT AGAINST DEFENDANT CC
AS TO LIABILITY
19.

CC failure

the time allotted
action against
appropriate.
Entertainment,
Moreover,

to answer the Corrected

renders him in default

Corporation

Inc., 1999 WL 436563

by defaulting,

(Ex. 7) within

concerning

him and an entry of default
See Lite-up

SAC

against

causes of
CC is

v. Sony Music
(SDNY, June 24, 1999).3

CC has admitted

liability

concerning

plaintiffs' allegations against him. See Montcalm Publishing Corp.
v. Ryan, et al., 807 F.Supp.

975

(SDNY, 1992).4

1 FRCP Rule 54(b) provides that:
(b) Judgment on Multiple Claims or Involving Multiple Parties. When
an action presents more than one claim for relief--whether as a claim,
counterclaim, crossclaim, or third-party claim--or when multiple
parties are involved, the court may direct entry of a final judgment
as to one or more, but fewer than all, claims or parties only if the
court expressly determines that there is no just reason for delay.
Otherwise, any order or other decision, however designated, that
adjudicates fewer than all the claims or the rights and liabilities
of fewer than all the parties does not end the action as to any of the
claims or parties and may be revised at any time before the entry of
a judgment adjudicating all the claims and all the parties' rights and
liabilities.
2 FRCP Rule

55 (a), provides that:
"Entering a Default. When a party against whom a judgment for affirmative
relief is sought has failed to plead or otherwise defend, and that failure
is shown by affidavit or otherwise, the clerk must enter the party's
default."
3 Holding:
it is appropriate to enter a default . . ., thereby barring his
participation
in further proceedings as to the merits." Id. 1999 WL
436563 at 2.
" ••• t

4 Holding:
5

19.

As this action remains pending against the answering

defendant Gagosian, plaintiffs
relief against

respectfully

request the following

CC:

i.

ii.

20.

An Order, pursuant to FRCP Rule 55(b) (2),
directing that a defaul t judgment, as to liability,
be entered against defendant CC; and
That the inquest to determine the level of damages
as to defendant CC shall await the time of trial
and shall be consolidated with the damages aspect
of the trial against non-defaulting defendant
Gagosian.

Plaintiffs

judgment concerning
juncture,
Gagosian

are entitled

Ecker Restoration

relief as a

damages against CC would be premature

since the action
continues

to the foregoing

against

to proceed.
Corp.,

the remaining

See Lite-Up,

1996 WL 312346

at this

defendant

supra;5 Garafola v.

(SDNY, June 10, 1996);6

"A default constitutes admission as to liability; therefore, the effect
of a defendants' default is that it is deemed to have admitted all of
the well-pleaded allegations raised in the complaint pertaining to
liability. [citation omitted] . Id. 807 F. Supp. 975 at 977.
/I

5 Holding:

"Nonetheless, even if the liability is joint and several and thus a
default judgment may be entered, it is appropriate to enter judgment
solely as to liability and not as to the amount of damages to be assessed
against the defaulting party, since a separate determination of damages
would pose the prospect of inconsistent judgments. [citation omitted] .
Id. 1999 WL 436563 at 3.

/I

6 Holding:
"Nonetheless, even if the liability is joint and several and thus a
default judgment may be entered, the courts have consistently held that
it is appropriate to enter judgment solely as to liability and not as
to the amount of damages to be assessed against the defaulting party,
since a separate determination
of damages would pose the prospect of
inconsistent judgments.
[citation omitted] .

*

*

*

In this case plaintiff seeks joint and several liability against the
defendants, rather than pure joint liability. [citation omitted] . Frow
6

3947 Austin Boulevard

Associates,

LLC, v. M.K.D.

2006 WL 785272 (SDNY, March 24,2006);7
v. Lawrence,

1991 WL206308

Capital Corp.,

Montcalm, aupr-a r " Friedman

(SDNY, Oct. 2, 1991).9

is not directly applicable to plaintiff's claims, and under governing
Second Circuit law, a determination of liability against the defaulting
defendant is therefore not premature at this time." Id. 1996 WL 312346
at 3.
7 Holding:
"
. we conclude that plaintiff has adequately pled allegations
sufficient to establish the defaulting defendants' liability under
Counts One, Two, Three, Four, and Five.

*

*

*

However, any determination
as to damages would be premature at
this time. Rather, where there are answering defendants
'it is
appropriate to enter judgment solely as to liability and not as to the
amount of damages to be assessed against the defaulting part [ies] , since
a separate determination of damages would pose the prospect of
inconsistent judgments.'
[citation omitted'" Id. 2006 WL 785272 at 2.
8 Holding:
"However, in such a case where some but not all defendants have defaulted,
the courts have consistently held that it is appropriate to enter
judgment solely as to liability and not as to the amount of damages
to be assessed against the defaulting party, since a separate
determination of damages would pose the prospect of inconsistent
judgments.

*

*

*

Instead, the proper procedure
is to consolidate
the inquest to
determine the level of damages as to the Defaulting Defendants with
the damages aspect of the trial against the non-defaulting defendants,
Ryan and Progressive.
[citation omitted]. The Defaulting Defendants
may not participate in the merits aspect of the trial, as their default
judgments stand as admissions of liability." [emphasis supplied]. Id.
807 F.Supp. at 978.
9 Holding:
"For the reasons stated, I deem the assessment of damages against the
defaulting defendants to be premature at this time. Entry of a judgment
of liability against those defendants is all the protection to which
plaintiff is currently entitled." Id. 1991 WL206308 at 4.
7

WHEREFORE,
Order

(i) pursuant

judgment,

plaintiffs'

this Court grant an

to FRCP Rule 55(b) (2) directing

as to liability,

CC in favor of plaintiffs;

be entered

and shall be consolidated
non-defaulting

a default

against defendant

Charles

(ii) that the inquest to determine

level of damages as to defendant

against

request

the

CC shall await the time of trial

with the damages

defendant

Gagosian;

aspect of the trial
together

with such

other and further relief as to this Court seems just and proper.

9'JJf Lmber, 2011

Sworn to before me this

NOTARY

PUBLIC

8

=========NOTICE OF ENTRY===========
PLEASE take notice that the within is a (certified)
true copy of a
duly entered in the office of the clerk of the within
named court on
Dated,
Yours, etc.

New Yo-rk,New Yo-rk10065

34 .J;ad 67th Sheet-3"d t=loo-r

Aa-ron Richa-rdGolub, .J;squi-re, .C.
p

Office and Post Office Address

Attorney for

To
Attorney( s) for

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
==========================================

Plaintiffs,

11-CIV-1679 (DLC)
SAFFLANE HOLDINGS LTD., and
ROBERT WYLDE,

-againstGAGOSIAN GALLERY, INC.,
CHARLES COWLES
Defendants.

ORDER TO SHOW CAUSE
AND SUPPORTING AFFIDAVIT

'21'2-838-4811

New Y o-rk,New Yo-rk10065

34 .J;ad 67th St-reet _3"d
t=loo-r

Aa-ron Richa-rdGolub, .J;squi-re, .C.
p

Attorneys for Plaintiffs
Office and Post Office Address, Telephone

To
Attorney( s) for

Attorney(s) for

Dated

Service of copy of the within is hereby admitted
Yours, etc.

M.

=======NOTICE OF SETTLEMENT======
PLEASE take notice that an order
of which the within is a true copy will be presented
for settlement to the Hon.
on
at
Dated,

Attorney for
Aa-ron Richa-rdGolub, .J;squi-re, .C.
p
34 .J;ad 67th Sheet - 3"d
t=loo-r
New Yo-rk,New Yo-rk10065