Howard v. Freedman et al

Filing 397

ORDER for 395 Report and Recommendations. Judge Pitman's July 21, 2016 R & R (Dkt. No. 395) is adopted by this Court. The Clerk of the Court is respectfully directed to enter judgment in favor of Plaintiff as against Defendants Glaf ira Rosales and Carlos Bergantinos Diaz, jointly and severally, in the amount of $10.5 million, plus prejudgment interest on $3.5 million at a rate of 9% per annum from June 13, 2007 to the date of entry of judgment. The Clerk of the Court is further directed to terminate any outstanding motions and to close this case. (As further set forth in this Order) (Signed by Judge Paul G. Gardephe on 9/28/2016) (kl)

UNITED STA TES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDC SDNY
DOCUMENT
EI,ECTRONICALI,Y FILED
DOC#:
DATE FILED: September lg, 2016

JOHN D. HOW ARD, individually and as
assignee of Jaime Frankfurt, LLC,
Plaintiff,

ORDER

- against 12 Civ. 5263 (PGG) (HBP)
ANN FREEDMAN, GLAFIRA ROSALES,
KNOEDLER GALLERY, LLC, d/b/a
KNOEDLER & COMPANY, MICHAEL
HAMMER, 8-31 HOLDINGS, INC., JOSE
CARLOS BERGANTINOS DIAZ, and
JAIME R. ANDRADE,
Defendants.

PAUL G. GARDEPHE, U.S.D.J.:
This action arises from Plaintiffs purchase of a forged painting from Defendant
Knoedler Gallery, LLC ("Knoedler"). The only remaining claims are against Glafira Rosales against whom the Court entered default on January 31, 2014 (Dkt. No. 224) - and Jose Carlos
Bergantinos Diaz - against whom the Court entered default on February I 0, 2014 (Dkt. No.
228). The Court referred the matter to Magistrate Judge Henry Pitman for an inquest into

damages. (Dkt. Nos. 224, 228)
On July 21, 2016, Judge Pitman issued a report and recommendation ("R & R")
"recommend[ing] that judgment be entered for plaintiff against Rosales and Diaz, jointly and
severally, in the amount of$10.5 million under 18 U.S.C. § 1964(c), plus prejudgment interest
on $3.5 million at a rate of9% per annum from June 13, 2007 to the date of entry of judgment
under N.Y. C.P.L.R. §§ 5001, 5004." (R&R (Dkt. No. 395) at 29) In his R & R, Judge Pitman
also informed the parties that they had fourteen days from service of the R & R to file any

objections, pursuant to Rule 72 of the Federal Rules of Civil Procedure, and that failure to do so
could result in waiver of review. (Id. at 29-30)
No party has objected to the R & R. Accordingly, the parties have waived their
rights to review by this Court. See Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis,
Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010) ("[A] party waives appellate
review of a decision in a magistrate judge's Report and Recommendation if the party fails to file
timely objections designating the particular issue."); see also Mario v. P & C Food Markets, Inc.,
313 F.3d 758, 766 (2d Cir. 2002) ("Where parties receive clear notice of the consequences,
failure timely to object to a magistrate's report and recommendation operates as a waiver of
further judicial review of the magistrate's

dc~ision.")

This Court has nonetheless reviewed Judge Pitman's well-reasoned R & Rand is
satisfied that "there is no clear error on the face of the record." Nelson v. Smith, 618 F. Supp.
1186, 1189 (S.D.N.Y. 1985) (citations omitted). In making his recommendations, Judge Pitman
carefully applied the correct standards for determining damages for each claim. Accordingly, the
R & R's recommendations are adopted in their entirety and judgment will be entered against
Defendants Rosales and Bergantinos Diaz as set forth below.
CONCLUSION

Judge Pitman's July 21, 2016 R & R (Dkt. No. 395) is adopted by this Court. The
Clerk of the Court is respectfully directed to enter judgment in favor of Plaintiff as against
Defendants Glafira Rosales and Carlos Bergantinos Diaz, jointly and severally, in the amount of
$10.5 million, plus prejudgment interest on $3.5 million at a rate of 9% per annum from June 13,
2007 to the date of entry of judgment. The Clerk of the Court is further directed to terminate any

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outstanding motions and to close this case.
Dated: New York, New York
September 28, 2016
SO ORDERED.

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