United States of America et al v. Nucare Pharmacy West, LLC et al

1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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UNITED STATES OF AMERICA, ex rel
Hyun Yu, Pharm.D, et al.,
REPORT AND
RECOMMENDATION
19 CV 6466 (EK) (CLP)
Plaintiffs,
-against-
NUCARE PHARMACY WEST, LLC,
et al.,
Defendants.
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POLLAK, United States Magistrate Judge:
On November 15, 2019, Qui tam plaintiff and relator Hyun Yu, Pharm. D. (“relator” or
“Dr. Yu”) filed an action on behalf of the United States of America, the State of New York, and
the City of New York against three defendant physicians (the “Defendant Physicians”)1 –
namely, Thomas Webster, M.D., Leonard Meggs, M.D., Nahesi Lamber-Doorn, M.D. – and a
number of other individual defendants – Hafizullah Ebady, Dela Saidazim, David Gary Bishoff,
and Brycen Kay Millett – along with NuCare Pharmacy West, LLC (“NuCare”), seeking to
recover treble damages and civil penalties based on defendants’ alleged fraudulent prescription
billing scheme, in which they made or caused the submission of false claims for payment to
Medicaid, the New York Health Insurance Program (“NYSHIP”), and the UFT Welfare Fund
(together the “Government Healthcare Programs”), in violation of the False Claims Act, 31
U.S.C. §§ 3729 et seq. (“FCA”), and the New York False Claims Act, State Fin. Law §§ 189 et
seq. (“NYFCA”). (Compl.).2
Currently pending before this Court on referral from the Honorable Eric Komitee is
1 For the status of the Defendant Physicians, see n.4 infra.
2 Citations to the “Compl.” refer to relator’s Complaint filed on November 15, 2019 (ECF No. 1).
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relator’s Motion for default judgment against defendant NuCare. (ECF No. 129). For the
reasons set forth below, it is respectfully recommended that a default judgment enter against
defendant NuCare, but that the requested damages be denied without prejudice for relator to
renew their request in accordance with the findings in this Report and Recommendation.
FACTUAL BACKGROUND3
According to the Complaint, NuCare is a New York limited liability corporation and
retail pharmacy; relator Dr. Hyun Yu is a pharmacist, hired by defendant NuCare to supervise
NuCare’s location at 250 Ninth Avenue, New York, N.Y. (Compl. ¶¶ 3, 13, 14). In October
2019, as supervising pharmacist at NuCare, Dr. Yu became aware of millions of dollars of
fraudulent prescriptions written by the Defendant Physicians and billed by NuCare to the
Government Healthcare Programs. (Id. ¶¶ 4-9). Dr. Yu refused to fill the fraudulent
prescriptions but observed through the NuCare computer system that many millions of dollars of
false prescription orders were being submitted to and paid by various insurers, including the
Government Healthcare Programs. (Id. ¶ 10).
According to the Complaint, since 2006, New York has required prescriptions to be
written on official forms (“ONYSRx”) that contain a hologram seal and are made of copy-proof
paper. (Id. ¶ 46 (citing 10 C.R.R.-NY § 910.6)). Instead of submitting legitimate prescriptions,
the Defendant Physicians submitted “Medication Orders” to NuCare by fax, that were not written
on ONYSRx; Dr. Yu refused to dispense any of the medications listed on these Medication
Orders. (Id. ¶¶ 49, 50). It is alleged that it would be impossible for the three Defendant
Physicians to have examined and diagnosed 3,988 patients in the month of October, all with the
3 The following facts are taken from the Complaint and accepted as true for purposes of the instant Motion.
See Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009) (finding that, in light of a defendant’s default, a court is
required to accept all of plaintiff’s factual allegations as true and draw all reasonable inferences in its favor).
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same constellation of symptoms, and written prescriptions for very expensive versions of
medications for medical issues that are often treated with common drugs. (Id. ¶¶ 56, 58). For
example, the Complaint alleges that the majority of the Medication Orders include a prescription
for Ketoprofen, costing $50.00 for 30 pills, when similar nonsteroidal anti-inflammatory drugs,
such as Motrin, Advil and Nuprin, retail for less than $5.00 for 100 pills. (Id. ¶ 59). Another
example, cited in the Complaint, was for SIL-K 2X5.5 pads, used to treat scars, retailing at
$5,000.00. (Id. ¶ 62). It is alleged that nearly every Medication Order included a prescription
for these pads. (Id.)
Dr. Yu alleges that, while at NuCare, he began receiving calls from individuals who were
unwitting subjects of these Medication Orders, complaining that they had been receiving calls
from telemarketers, trying to push various medications on them. (Id. ¶¶ 65-67). Many of them
rejected the offers for medication, only to later learn that their insurance company had been
billed for the medication. (Id. ¶ 68). The Complaint lists a variety of examples of individuals for
whom the Defendant Physicians ordered medications even though the patient did not suffer from
any of the associated medical conditions and did not want or need the medication. (Id. ¶¶ 69-
77).
According to government billing data, the three named Defendant Physicians billed $65
million, $35 million, and $4.5 in medication respectively, with large amounts being paid by
Medicaid-funded programs. (Id. ¶¶ 78, 79). Another $2.4 million was paid for by NYSHIP. (Id.
¶ 80). It is alleged that in the month of October 2019 alone, the Defendant Physicians wrote over
1,500 different false prescriptions, which NuCare billed to the Government Healthcare Programs
and for which the Programs then paid more than $3.2 million. (Id. ¶¶ 82, 83).
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PROCEDURAL HISTORY
Following the filing of the Complaint, the case was sealed for a period of time to allow
the United States and the State of New York time to investigate and determine whether they
would intervene in the action. On December 14, 2022, the United States and the State of New
York notified the court that they were not intervening at that time. (ECF Nos. 14-16). On
December 15, 2022, the court ordered the Complaint to be unsealed and served on the
defendants. (ECF Nos. 18, 19). Relator filed an Amended Complaint on May 18, 2023, adding
four new Defendant Physicians. (ECF No. 24). After the United States and the State of New
York indicated they had no intention of intervening, the court directed the Amended Complaint
be unsealed and served on defendants. (ECF Nos. 25, 27, 28).
On August 29, 2023, defendant NuCare was served with the Summons and First
Amended Complaint through service on the Secretary of State in Albany, N.Y. (ECF No. 40).
On July 26, 2024, when defendant NuCare had failed to file an Answer or otherwise respond to
the Amended Complaint, the Clerk of Court entered a default against defendant NuCare.4 (ECF
No. 107).
On March 10, 2025, relator filed the instant Motion for default judgment which was
referred to the undersigned by the Honorable Eric Komitee on March 18, 2025. (ECF No. 129;
ECF Order dated Mar. 18, 2025). Relator seeks an award of $3,128,127.72 on behalf of the State
4 According to the Declaration of Adam Pollock in Support of Motion for Judgment by Default, filed
March 10, 2025 (“Pollock Decl.”) as Attachment 1 to ECF No. 129, the individually named defendants have
resolved their cases with plaintiff as follows: 1) Dela Saidazim reached a settlement in principle with plaintiff on
February 6, 2024 and the case against him was discontinued on May 9, 2024 (ECF Order dated May 9, 2024); 2)
plaintiffs expect to settle with and dismiss Dr. Nahesi Lambert-Doorn, Dr. Leonard Meggs, Bryeen Kay Millett, and
David Gary Bishoff; 3) Dr. Thomas Webster stipulated to the entry of judgment on September 17, 2024, in the
amount of $1 million (ECF No. 115; ECF Order dated November 5, 2024); and 4) plaintiffs expect to dismiss
Hafizullah Ebady without prejudice to the United States or the State of New York. (Pollock Decl. ¶¶ 24-30; ECF
No. 113).
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of New York, plus $89,537.50 in fees and $1,749.44 in expenses.5 On October 14, 2025, this
Court issued an Order setting a deadline for defendant NuCare to file any papers in response to
the motion by October 28, 2025, and notifying NuCare that unless it requested a hearing,
damages would be determined by reference to the papers. Plaintiffs indicated that this Order was
served on defendants, filing proof of service on the docket on October 17, 2025 (ECF No. 133).
Since the issuance of the Court’s October 14, 2025, Order, defendant NuCare has neither
appeared nor filed papers. Accordingly, the Court proceeds to consider the Motion for default
judgment.
DISCUSSION
I. 	Default Judgment
Rule 55(a) of the Federal Rules of Civil Procedure provides that “[w]hen 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.” Fed. R. Civ.
P. 55(a). Rule 55 sets forth a two-step process for the entry of default judgment. See Enron Oil
Corp. v. Diakuhara, 10 F.3d 90, 95-96 (2d Cir. 1993). First, the Clerk of Court enters the default
pursuant to Rule 55(a) by notation of the party’s default on the Clerk’s record of the case. See
id. Second, after the Clerk of Court enters a default against a party, if that party fails to appear or
otherwise move to set aside the default pursuant to Rule 55(c), the court may enter a default
judgment. See Fed. R. Civ. P. 55(b). Where the amount of damages owed requires a judicial
finding, a default judgment may be entered once the court has conducted a hearing or made a
referral to determine the question of damages. See Fed. R. Civ. P. 55(b)(2).
5 In his Declaration, Mr. Pollock explains that although the Firm incurred a total of $241,037.50 in fees and
$3,965.23 in expenses, it was only seeking $89,537.50 in fees and $1,749.44 in expenses because counsel
anticipated receiving $151,500.00 in fees and $2,215.79 in expenses from the settlements with the other defendants.
(Pollock Decl. ¶ 33).
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The Second Circuit has noted that a court determining whether to grant a default
judgment should be guided by the same factors applicable to a motion to set aside entry of
default. See Pecarsky v. Galaxiworld.com, Ltd., 249 F.3d 167, 170-71 (2d Cir. 2001); see also
Enron Oil Corp., 10 F.3d at 96. These three factors are comprised of “(1) the willfulness of the
default; (2) the existence of any meritorious defense; and (3) prejudice to the non-defaulting
party.” United States v. Veeraswamy, 765 F. Supp. 3d 168, 187 (E.D.N.Y. 2025) (quoting
Bricklayers & Allied Craftworkers Loc. 2, Albany, N.Y. Pension Fund v. Moulton Masonry &
Const., LLC, 779 F.3d 182, 186 (2d Cir. 2015)).
The Second Circuit has cautioned that since a default judgment is an extreme remedy, it
should only be entered as a last resort. See Meehan v. Snow, 652 F.2d 274, 277 (2d Cir. 1981);
see also Sheet Metal, Air, Rail & Transp. Workers Loc. Union No. 127 v. Frank Torrone & Sons,
Inc., No. 14 CV 2224, 2018 WL 4771897, at *4 (E.D.N.Y. Oct. 3, 2018), report and
recommendation adopted by, 2018 WL 6161655 (E.D.N.Y. Sept. 4, 2018). While the Second
Circuit has recognized the “push on a trial court to dispose of cases that, in disregard of the rules,
are not processed expeditiously [and] . . . delay and clog its calendar,” it has held that the district
court must balance that interest with its responsibility to “[afford] litigants a reasonable chance to
be heard.” Enron Oil Corp. v. Diakuhara, 10 F.3d at 95-96. Thus, in light of the “oft-stated
preference for resolving disputes on the merits,” default judgments are “generally disfavored,”
and “doubts should be resolved in favor of the defaulting party.” (Id.); see also Erwin DeMarino
Trucking Co. v. Jackson, 838 F. Supp. 160, 162 (S.D.N.Y. 1993) (noting that courts must
“supervise default judgments with extreme care to avoid miscarriages of justice”). Furthermore,
“[Rule 55(b)] states that a judgment by default ‘may’ be entered under specified circumstances,
not that it must.” Erwin DeMarino Trucking Co. v. Jackson, 838 F. Supp. at 162. Accordingly,
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plaintiffs are not entitled to a default judgment as a matter of right simply because a party is in
default. See, e.g., id.
The burden is on the plaintiff to establish his entitlement to recovery. See Greyhound
Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992), cert. denied, 506
U.S. 1080 (1993). When a default judgment is entered, the defendant is deemed to have
admitted all well-pleaded allegations in the complaint pertaining to liability, but not as to
damages. (Id.) Thus, for the purposes of an inquest, the court “accept[s] as true all of the factual
allegations in the complaint, except those claims relating to damages,” and the plaintiff is
“entitled to all reasonable inferences from the evidence offered.” Au Bon Pain Corp. v. Artect,
Inc., 653 F.2d 65 (2d Cir. 1981). While a court must ensure that there is a basis for the damages
specified in a default judgment, a hearing is not necessary and the court may instead rely on
“detailed affidavits or documentary evidence.” Fustok v. Conticommodity Servs., Inc., 122
F.R.D. 151, 156 (S.D.N.Y. 1988) (collecting cases), aff’d, 873 F.2d 38 (2d Cir. 1989).
Here, considering the first default judgment factor, it is beyond dispute that defendant
NuCare is in willful default. The Amended Complaint was served on defendant NuCare through
service on the Secretary of State, its designated agent for service. On March 10, 2025, plaintiff
filed the Motion for default judgment against NuCare and indicated in the accompanying
certificate of service that physical copies of the motion and supporting papers were served. (ECF
No. 97 at 4-6). However, on March 16, 2025, counsel informed the Court that the mailing to
NuCare’s address at 246 9th Avenue, New York, N.Y. 10001, had been returned as undeliverable
(“No such number/unable to forward”). (ECF No. 131).
Despite proper service of the Amended Complaint (ECF No. 40), defendant has failed to
respond to the Amended Complaint or retained an attorney to represent them in this action. Nor
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have they responded to contest plaintiff’s Motion for default judgment or submitted any evidence
relating to the calculation of damages. Moreover, because the defendant is a limited liability
corporation, the failure to obtain counsel necessarily constitutes a failure to defend because a
corporation cannot proceed pro se in federal court. See Bravado Int’l Grp. Merch. Servs., Inc. v.
Ninna, Inc., 655 F. Supp. 2d 177, 188 (E.D.N.Y. 2009) (noting that “it is well-established that a
corporation may not appear in the Second Circuit unless represented by counsel” (citing Shapiro,
Bernstein & Co. v. Cont’l Record Co., 386 F.2d 426, 427 (2d Cir. 1967) (per curiam))); see also
Grace v. Bank Leumi Trust Co. of N.Y., 443 F.3d 180, 192 (2d Cir. 2006); Jones v. Niagara
Frontier Transp. Auth., 722 F.2d 20, 22 (2d Cir. 1983) (discussing the rationale for requiring
corporations, as “artificial” entities, to appear only through counsel).
The Court notes that the address on which plaintiff served their Motion papers is
affiliated with a corporation called NuCare Pharmacy & Surgical, and that the 9 th Avenue
address appears to belong to a now-closed branch of this corporation.6 Given that plaintiff’s
mailings have been returned as undeliverable, the Court Orders plaintiff to serve this Report and
Recommendation both on defendant NuCare Pharmacy West at 246 9 th Avenue, New York,
N.Y. 10001, and NuCare Pharmacy & Surgical at 1789 1st Ave #6901, New York, NY 10128.
With respect to the second default judgment factor, the Court is unable to determine if
there are any meritorious defenses to the allegations in the Complaint because the defendant has
failed to appear or present evidence of such a defense. “A defense is meritorious if it is good at
law so as to give the factfinder some determination to make.” Am. Alliance Ins. Co. v. Eagle
6 Websites reflecting the two addresses and apparent affiliation of defendant NuCare Pharmacy West and
Nucare Pharmacy & Surgical include: Nucare Pharmacy & Surgical, H EALTHGRADES,
https://www.healthgrades.com/pharmacy/nucare-pharmacy-surgical-pdgwqu (last visited Dec. 24, 2025); NuCare
Pharmacy & Surgical, 4URSPACE, https://4urspace.com/location/nucare_pharmacy_&_surgical/ny/new_york/
250_9th_ave/ 10001/25225 (last visited Dec. 24, 2025); Nucare Pharmacy & Surgical, YELP, https://www.yelp.
com/biz/nucare-pharmacy-and-surgical-new-york-3 (last visited Dec. 24, 2025); Nucare Pharmcy and Surgical,
YELP, https://www.yelp.com/biz/nucare-pharmacy-and-surgical-new-york-4 (last visited Dec. 24, 2025).
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Ins. Co., 92 F.3d 57, 61 (2d Cir. 1996). While a “defendant need not establish his defense
conclusively . . . he must present evidence of facts that, if proven at trial, would constitute a
complete defense.” S.E.C. v. McNulty, 137 F.3d 732, 740 (2d Cir. 1998) (internal citations
omitted). Courts in this district have found that a court is unable to make a determination
whether a defendant has a meritorious defense when that defendant fails to answer a complaint,
thereby weighing in favor of granting a default judgment. See Sola Franchise Corp. v. Solo
Salon Studios Inc., No. 14 CV 0946, 2015 WL 1299259, at *6 (E.D.N.Y. Mar. 23, 2015)
(collecting cases). Therefore, the second factor weighs in favor of granting default judgment as
to defendant NuCare.
Finally, under the third default judgment factor, relator would be prejudiced if the
Motion for default judgment were denied because “there are no additional steps available to
secure relief in this Court.” Allstate Ins. Co. v. Abramov, No. 16 CV 1465, 2020 WL 1172697,
at *5 (E.D.N.Y. Feb. 21, 2020), report and recommendation adopted by, No. 16 CV 1465, 2020
WL 1166498 (E.D.N.Y. Mar. 11, 2020) (collecting cases).
Accordingly, the Court finds that all three factors permit entry of default judgment
against the defendant and respectfully recommends that it be deemed in default. Next, the Court
considers whether relator has stated a plausible claim for liability against the defendant and if so,
what damages and other relief should be awarded.
II. 	Liability
Relator alleges that he is entitled to a default judgment for defendant NuCare’s violations
of the federal False Claims Act and New York False Claims Act. (Rel. Mem.7 at 3). While a
defendant in default is deemed to have admitted the well-pleaded allegations in the complaint
7 Citations to “Rel. Mem.” refer to the Relator’s Memorandum of Law (ECF No. 129-9), filed as part of the
Motion for default judgment.
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pertaining to liability, a court must determine whether the facts alleged in the complaint are
sufficient to establish liability. See Labarbera v. ASTC Lab’ys Inc., 752 F. Supp. 2d 263, 270
(E.D.N.Y. 2010).
For the reasons below, the Amended Complaint sets forth facts, which, if true, establish
the claims that defendant NuCare should be held liable for the state and federal false claims act
violations. The elements required to establish each of these claims are set forth below.
A. 	False Claims Act Standards
The FCA “establishes liability for anyone who ‘knowingly presents, or causes to be
presented a false or fraudulent claim for payment or approval,’ 31 U.S.C. § 3729(a)(1)(A), or
‘knowingly makes, uses, or causes to be made or used, a false record or statement material to a
false or fraudulent claim.’” United States ex rel. Lee v. N. Metro. Found. For Healthcare, Inc.,
No. 13 CV 4933, 2021 WL 3774185, at *3 (E.D.N.Y. Aug. 25, 2021), aff’d, 2022 WL 17366627
(2d Cir. Dec. 2, 2022). As this court previously explained, there are five elements that a relator
must demonstrate in order to prove a claim under the FCA: “that the defendant ‘(1) made a
claim, (2) to the [] government, (3) that is false or fraudulent, (4) knowing of its falsity, and (5)
seeking payment from the federal treasury.’” United States ex rel. Lee v. N. Adult Daily Health
Care Ctr., 205 F. Supp. 3d 276, 287 (E.D.N.Y. 2016) (quoting Bishop v. Wells Fargo & Co., 823
F.3d 35, 43 (2d Cir. 2016)).
In this case, Dr. Yu has satisfied the first three elements of the test by alleging that
defendant NuCare filed false claims for reimbursement from a government health program,
namely, Medicaid, for various prescriptions. (Compl. ¶¶ 4-9). The Complaint alleges that the
claims were false in that the prescriptions were submitted as medical orders, and not submitted in
accordance with the state legal requirements for writing prescriptions; the prescriptions were not
medically necessary, and, given the numbers of similar prescriptions, it was physically
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impossible for the Defendant Physicians to have actually seen and diagnosed all the individuals
for whom claims were submitted. (Id. ¶¶ 49, 50, 56, 58).
In the papers submitted in connection with the default judgment motion, relator provides
additional details regarding the specifics of NuCare’s involvement in what he describes as acting
as “a front for a criminal insurance fraud operation.” (Yu Decl.8 ¶ 4). According to Mr. Yu, the
Defendant Physicians submitted Medication Orders not written on ONYSRx. (Id. ¶ 17). Even
though Dr. Yu refused to dispense medications pursuant to these invalid and illegal prescriptions,
the NuCare computer system showed that NuCare nevertheless billed Medicaid and other
Government Healthcare Programs for large numbers of unfilled prescriptions and the
Government Healthcare Programs paid a substantial volume of these bills. (Id. ¶¶ 17-19). After
Dr. Yu expressed discomfort with these fraudulent claims, he was terminated on November 15,
2019, for refusing to participate in the scheme. (Id. ¶¶ 20-22).
Dr. Yu states that the Medication Orders billed by NuCare were “very nearly uniform,”
and called for “the dispensing of the same mix of very expensive drugs.” (Id. ¶¶ 23, 24).
Moreover, given the numbers of orders, it was impossible for the physicians, even collectively,
to have seen and examined these patients all in the month of October 2019. (Id. ¶ 27).
According to the Declaration of Julia Levi, an analyst with relator’s counsel’s firm, data
received from the New York Department of Health (“NY DOH”), pursuant to a subpoena, shows
that from 2017 through 2022, three of the Defendant Physicians wrote 688 false prescriptions
that were paid by Medicaid. (Levi Decl.9 ¶¶ 8-13). Specifically, Dr. Thomas Webster caused
451 prescriptions to be claimed by NuCare for payment by Medicaid from February 2019 to June
8 Citations to “Yu Decl.” refer to the Declaration of Hyun Yu, Pharm. D., filed March 10, 2025 (ECF No.
129-7).
9 Citations to “Levi Decl.” refer to the Declaration of Julia Levi, filed March 10, 2025 (ECF No. 129-8).
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2020, resulting in $678,664.05 in false claims that should not have been paid by Medicaid. (Id.
¶¶ 8, 9). From November 2018 to June 15, 2020, Dr. Leonard Meggs caused 226 prescriptions
to be claimed by NuCare for payment by Medicaid, resulting in $335,938.52 in false claims that
should not have been paid by Medicaid. (Id. ¶¶ 10, 11). Dr. Nahesi Lambert-Doorn caused 11
prescriptions to be claimed from January 2017 to November 10, 2022, resulting in $28,106.67 in
false claims paid by Medicaid. (Id. ¶¶ 12, 13). Based on Ms. Levi’s calculations, the total
amount of damages caused by the false prescriptions of these three physicians, which NuCare
claimed for payment by Medicaid, totaled $1,042,709.24. (Id. ¶15).
Based on the allegations of the Amended Complaint, which the Court accepts as true for
purposes of this Motion for default judgment, it is clear that relator has alleged all of the
elements of a plausible claim under the FCA.10
Accordingly, it is respectfully recommended that the District Court grant relator’s default
judgment Motion and find defendant NuCare in violation of the FCA and NYFCA.
III. 	Damages
Turning to the calculation of damages, relator seeks an award of $22,319,199.72 in favor
of the State of New York, and attorneys’ fees in favor of relator Hyun Yu in the amount of
$89,537.50 in attorneys’ fees and $1,749.44 in expenses. (Proposed Judgment (ECF No.129-
10)).
A. Legal Standard
Once a court determines that default judgment should enter, the plaintiff must still
10 Relator also brings claims under the NYFCA. As this court noted in United States ex rel. Lee v. N.
Metro. Found. For Healthcare, Inc., the New York False Claims Act “‘is modeled on the federal act,’” and
“‘therefore it is appropriate to look toward federal law when interpreting the New York Act.’” 2021 WL 3774185,
at *3 (quoting United States ex rel. Pervez v. Beth Israel Med. Ctr., 736 F. Supp. 2d 804, 816 (S.D.N.Y. 2010); State
ex rel. Seiden v. Utica First Ins. Co., 96 A.D.3d 67, 71 (1 st Dept. 2012)). Given that the Court finds the Complaint
states a claim under the FCA, the Court further finds that the Complaint also states a claim under the NYFCA.
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establish its entitlement to the damages sought. See Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir.
1974) (holding that “[w]hile 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”); Wing v. East River Chinese Rest., 884 F. Supp.
663, 669 (E.D.N.Y. 1995) (explaining that “[a]lthough the default establishes a defendant’s
liability, unless the amount of damages is certain, the court is required to make an independent
determination of the sum to be awarded”). Unlike the question of liability, a defaulting
defendant is not deemed to have admitted all well-pleaded allegations concerning damages. See
Jeremiah v. 5 Towns Jewish Times, Inc., No. 22 CV 5942, 2023 WL 6593997, at *3 (E.D.N.Y.
Aug. 9, 2023). Thus, the plaintiff must still prove damages in a manner that provides
defendants with an opportunity to contest the claimed damages. See Greyhound Exhibitgroup,
Inc. v. E.L.U.L. Realty Corp., 973 F.2d at 158.
When a court enters a default judgment and the amount of damages sought does not
consist of a sum certain, the court is permitted to “conduct hearings” or make referrals as
necessary. Fed. R. Civ. P. 55(b)(2)(B). 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.” United States v. Richardson, No. 17 CV 2982, 2018 WL 4138934, at *3 (E.D.N.Y.
Feb. 13, 2018), report and recommendation adopted by, 2018 WL 4119518 (E.D.N.Y. Aug. 29,
2018) (quotation marks omitted). Typically, detailed affidavits describing damages calculations
and payment summaries are sufficient for a reviewing court to determine damages. See Allstate
Ins. Co. v. Nazarov, No. 11 CV 6187, 2015 WL 5774459, at *17 (E.D.N.Y. Sept. 30, 2015)
(noting that “[i]n similar cases, courts have found such documentation [an affidavit from
Allstate’s Michael Bruno and copies of payment summaries] sufficient to support a damages
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award[.]” (collecting cases)); Allstate Ins. Co. v. Williams, 13 CV 2893, 2014 WL 6900121, at
*9 (E.D.N.Y. Dec. 5, 2014) (same); Allstate Ins. Co. v. Aminov, 11 CV 2391, 2014 WL 527834,
at *7 (E.D.N.Y. Feb. 7, 2014) (same); Allstate Ins. Co. v. Howell No. 09 CV 4660, 2013 WL
5447152, at *7 (E.D.N.Y. Sept. 30, 2013) (same); Allstate Ins. Co. v. Smirnov, No. 12 CV 1246,
2013 WL 5407224, at *15 (E.D.N.Y. Aug. 21, 2013) (same).
B. Damages and Penalties
Here, relator has filed detailed affidavits and submitted some documentation in support of
the damages request. (See, e.g., Levi Decl., Pollock Decl.). However, the submissions in this
case leave the Court uncertain as to how relator arrived at its requested damages amounts.
Indeed, it is clear that relator has already settled with a number of the other individual defendants
in the case or entered judgments against them (see n.4 supra), but it is unclear whether those
settlement amounts have been taken into account in relator’s current request.
According to the Declaration of Ms. Levi, her review of the records demonstrates that Dr.
Webster caused $678,664.05 in damages to Medicaid; Dr. Meggs caused $335,938.52 in
damages to Medicaid; and Dr. Lambert-Doorn cause $28,106.67 in damages, for a total of
$1,042,709.24 in false claims made by NuCare for reimbursement to Medicaid. (Levi Decl. ¶¶ 9,
11, 13, 15). When these amounts are trebled, relator claims the total owed would be
$3,128,127.72. (Id. ¶ 15). In addition, given that the FCA provides for a civil penalty, which
has been adjusted by the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. §
2461, the range for civil penalties is now $13,946.00 to $27,894.00. (Levi Decl. ¶ 14). Using
the number of false claims submitted by each doctor – Webster (451), Meggs (226), and
Lambert-Doorn (11) – multiplied by the top of the range $27,894.00 – relator seeks penalties of
$19,191,072. (Id. ¶ 15).
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According to the Declaration of Adam Pollock, counsel for relator from the firm of
Pollock Cohen LLP (the “Firm”), Pollock reviewed the fraudulent “Medication Orders from
NuCare,” and, along with analyst Julia Levi, prepared a table representing various amounts
“apparently paid by Medicaid-funded programs.” (Pollock Decl. ¶ 19). Citing the Declaration
of Ms. Levi, Mr. Pollock asserts that “[a]s detailed therein, NuCare is liable for $22,319,199.72
in penalties and damages.” (Id. ¶ 23).
However, nowhere does relator explain why penalties should be assessed at the higher
end of the range, why treble damages are merited in this case, or more importantly, whether the
total requested takes into account amounts already paid by the other defendants in settlements.
Nor has counsel provided case authority supporting the requests. Accordingly, it is respectfully
recommended that relator’s request for treble damages and penalties be denied at this time and
that relator be permitted to file a new damages application with legal authority in support of the
request for treble damages and penalties, and an explanation of the impact, if any, of the other
settlements on the total amount requested.
C. Attorney’s Fees and Expenses
Relator also requests an award of attorney’s fees and costs. According to Mr. Pollock,
his firm incurred a total of $241,037.50 in fees, with analysts spending 126.9 hours, charged at
rates of $200.00 per hour; associates billing a total of 69.8 hours at rates ranging from $500.00 to
$650.00 an hour; counsel billing 37.4 hours at $700.00 per hour; special counsel billing 63.3
hours at rates ranging from $550.00 to $700.00 an hour; and partners billing 146.8 hours at rates
ranging from $800.00 to $850.00 an hour. (Pollock Decl. ¶ 31). Counsel asserts that hourly
paying clients regularly pay these rates to the Firm. (Id. ¶ 32). As noted, however, because the
Firm expects to receive $151,500.00 in fees from the settling defendants, the Firm is only
seeking $89,537.50 in fees. (Id. ¶ 33). As for expenses, since the Firm expects to receive
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$2,215.79 in expenses, it is only requesting $1,749.44 in this default judgment motion. (Id.)
In support of the hours billed, Mr. Pollock attached detailed contemporaneous time
records and invoices from the Firm, identifying the members of the firm who worked on the
litigation, the number of hours spent, regular billing rates, and lodestar values. (Id. ¶ 34, Ex.
D11). He also attaches a printout with the biographies of certain of the Firm’s members. (ECF
No. 129-6). Counsel indicates that paying clients regularly pay the requested rates, and has
provided legal authority supporting the requested rates in this district for each category. (Rel.
Mem. at 9-10). The Court finds that counsel has met his burden to provide support for the
Firm’s fee request, and that the fee request is reasonable. The Court would recommend granting
the attorney’s fees, but for the fact that the damages requested by plaintiff are lacking in support.
For that reason, the Court respectfully recommends that the request for attorneys’ fees be granted
once the damages requests are supplemented.
Regarding the expenses sought in the sum of $1,749.44, the Court considers the invoices
provided by relator’s counsel, which include a section listing the expenses counsel incurred.
(Ex. D at 64-65). The expenses listed add up to $3,965.23, and as mentioned, counsel’s Firm
only asks for $1,794.44 in light of the settlement agreements that are expected to be reached with
certain of the defendants. While these expenses are reasonable and clearly supported by the
invoices, the Court declines to recommend granting expenses when it has recommended denying
any award of damages or attorney’s fees at this time. As with attorney’s fees, the Court
respectfully recommends that, pending supplementation of the damages requests, the request for
expenses be denied at this time, without prejudice to renew it.
11 Exhibit D is Attachment 5 to the Motion for default judgment (ECF No. 129-5).
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CONCLUSION
Accordingly, the Court respectfully recommends that relator’s Motion for default
judgment be granted, but that the request for damages and fees and costs be denied without
prejudice to renew subject to an updated damages submission, supplemented according to the
findings of this Report and Recommendation.
Any objections to this Report and Recommendation must be filed with the Clerk of the
Court, with a copy to the undersigned, by January 14, 2026. See 28 U.S.C. 636(b)(1); Fed. R.
Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(a) (providing the method for computing time).
Failure to file objections within the specified time waives the right to appeal the District Court’s
order. See, e.g., Caidor v. Onondaga Cnty, 517 F.3d 601, 604 (2d Cir. 2008).
Plaintiff is Ordered to serve this Report and Recommendation both on defendant NuCare
Pharmacy West at 246 9th Avenue, New York, N.Y. 10001, and NuCare Pharmacy & Surgical at
1789 1st Ave #6901, New York, NY 10128, and file proof of service on the docket immediately
thereafter. The Clerk is directed to send copies of this Report and Recommendation to the
parties either electronically through the Electronic Case Filing (ECF) system or by mail.
SO ORDERED.
Dated: Brooklyn, New York
December 31, 2025 	/s/ Cheryl L. Pollak
Cheryl L. Pollak
United States Magistrate Judge
Eastern District of New York
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