Singer Coney, LLC v. Pepper Palace, Inc.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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SINGER CONEY, LLC,
Plaintiff, 	REPORT AND
RECOMMENDATION
-against- 	25 CV 721 (KAM) (CLP)
PEPPER PALACE, INC.,
Defendant.
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POLLAK, United States Magistrate Judge:
On February 7, 2025, landlord-plaintiff Singer Coney, LLC filed a Complaint against its
tenant, defendant Pepper Palace, LLC, for breach of contract, seeking damages for fixed rent in
arrears, accelerated rent, interest charges, and attorney’s fees. (See Compl.1) Presently before
the Court on referral from the Honorable Kiyo A. Matsumoto is plaintiff’s motion for a sum
certain default judgment. (See Mot.2) For the reasons set forth below, it is respectfully
recommended that plaintiff’s motion be granted in part.
FACTUAL BACKGROUND
According to the Complaint, plaintiff is the owner of 1232 Surf Avenue and 3015
Stillwell Avenue, Brooklyn, NY 11224. (Compl. ¶ 20). On May 25, 2023, plaintiff entered into
a lease with defendant to rent a portion of the ground floor of the buildings for a three-year term
beginning on June 2, 2023. (Id. ¶¶ 20-23). Under the lease, defendant was to pay rent to
plaintiff beginning on July 11, 2023 in the amount of $15,916.67 per month for the first year,
$16,394.17 per month for the second year, and $16,885.99 per month for the third year. (Id. ¶¶
24-26).
1 Citations to “Compl.” refer to the Complaint filed on February 7, 2025 (ECF No. 1).
2 Citations to “Mot.” refer to the motion for sum certain default judgment filed on May 15, 2025 (ECF No. 13).
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Plaintiff alleges that defendant ceased paying rent in February 2024. (Id. ¶ 29). Plaintiff
provided defendant with a default notice on April 15, 2024, giving defendant 7 days to cure the
default. (Id. ¶ 31). Defendant did not cure the default and on July 25, 2024, plaintiff provided
defendant with a termination notice, demanding that defendant surrender and quit the premises
by July 29, 2024. (Id. ¶¶ 32-34). When defendant failed to vacate the premises, plaintiff
exercised its right to self-help under the lease and changed the locks to the property. (Id. ¶¶ 35-
37).
Plaintiff calculates that as of September 2024, defendant owed $112,371.69 in past due
rent. (Id. ¶ 39). Additionally, Section 19.2 of the lease provides that, upon default, “Tenant shall
pay to Landlord, as damages, at the election of Landlord, sums equal to the aggregate of all Rent
that would have been payable by Tenant had this Lease not terminated,” less any amounts
received from reletting the premises to another lessee. (Id. ¶ 38). As an alternative to Section
19.2, Section 19.3 of the lease provides that:
Landlord may recover from Tenant, as liquidated damages, in
addition to any unpaid Rent accrued to the date of such
termination, an amount equal to the difference, for the unexpired
portion of the Term hereof, between: (1) the aggregate of all Rent
reserved hereunder; and (2) the then fair and reasonable rental
value of the Premises, both discounted at the rate of four percent
(4%) per annum to present worth.
(Id. ¶ 40). On September 13, 2024, plaintiff exercised its rights under Section 19.3 and served
defendant with a notice of rent acceleration, demanding $240,032.32 – an amount plaintiff
alleges is equal to the difference between “the aggregate of all Rent reserved” and “the fair and
reasonable value of the Premises, both discounted at the rate of four percent (4%) per annum to
present worth.” (Id. ¶ 41). According to plaintiff, defendant has not remitted any payment. (Id.
¶ 42).
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The lease also provides for late charges and interest on unpaid rent. (Id. ¶¶ 48, 65-67).
Specifically, plaintiff points to Section 26.1 of the lease which states that:
If Tenant shall fail to pay all or any part of any Rent after eth [sic]
same shall have become due and payable, Tenant shall pay as
Additional Rent hereunder to Landlord a late charge of four cents
($.04) for each dollar of the amount of such Rent that shall have
not been paid to Landlord when due. In addition to the foregoing,
if Tenant fails to pay any Rent after its due date, Tenant shall pay
interest thereon from the date due until the date paid at an annual
rate equal to four (4) percentage points above the rate then most
recently announced by Citibank, N.A., New York, New York or its
successor, as its corporate base lending rate, which rate may
change from time to time, and such interest shall be deemed to be
Additional Rent.
(Id. ¶ 48). The lease also provides that “the prevailing party in any…litigation” involving the
enforcement of the lease “shall receive from the other party all costs and reasonable attorneys’
fees incurred by such party at trial and on appeal in connection with such litigation.” (Id. ¶ 43).
On February 7, 2025, plaintiff commenced this lawsuit seeking to enforce its rights under
the lease, seeking damages for rent in arrears, accelerated rent, late charges, interest, and
attorneys’ fees. (See generally, Compl.) Defendant was served on February 13, 2025 and its
answer was due March 6, 2025. (ECF No. 9). Defendant failed to file an answer or otherwise
respond to the Complaint, so on April 11, 2025, plaintiff requested a certificate of default. (ECF
No. 10). On April 14, 2025, the Clerk of Court entered default. (ECF No. 11). On May 15,
2025, plaintiff filed its motion for a sum certain default judgment. (ECF No. 13). The district
court judge, the Honorable Kiyo A. Matsumoto, referred the motion to the undersigned on May
16, 2025. (Electronic Order, dated May 16, 2025). The Court provided defendant with an
opportunity to respond to plaintiff’s motion by November 20, 2025. (ECF No. 14). Having
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received no response from defendant, this Court bases its recommendation solely on plaintiff’s
submissions.
DISCUSSION
I. 	Default Judgment
A. Legal Standard
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 an 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. 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).
The Second Circuit has cautioned that since a default judgment is an “extreme
sanction[,]” it should only be entered as a last resort. See Meehan v. Snow, 652 F.2d 274, 277
(2d Cir. 1981). 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, considering 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. Accordingly, plaintiff is not entitled to a default judgment as a matter of
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right simply because a party is in default. See 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”).
The Court has significant discretion to consider a number of factors in deciding whether
to grant a default judgment, including: (1) whether the grounds for default are clearly
established; (2) whether the claims were pleaded in the complaint, thereby placing the defendants
on notice, see Fed. R. Civ. P. 54(c) (stating a “default judgment must not differ in kind from, or
exceed in amount, what is demanded in the pleadings”); King v. STL Consulting LLC, No. 05
CV 2719, 2006 WL 3335115, at *4–5 (E.D.N.Y. Oct. 3, 2006) (holding that Rule 54(c) is not
violated in awarding damages that accrued during the pendency of a litigation, so long as the
complaint put the defendant on notice that the plaintiff may seek such damages); and (3) the
amount of money potentially involved—the more money involved, the less justification for
entering the default judgment. Hirsch v. Innovation Int’l, Inc., No. 91 CV 4130, 1992 WL
316143, at *2 (S.D.N.Y. Oct. 19, 1992). Additionally, the Court may consider whether material
issues of fact remain, whether the facts alleged in the complaint state a valid cause of action,
whether plaintiff has been substantially prejudiced by the delay involved, and whether the default
judgment might have a harsh effect on the defendants. See Pacific M. Int'l Corp. v. Raman Int'l
Gems, Ltd., 888 F. Supp. 2d 385, 393 (S.D.N.Y. 2012).
The burden is on the plaintiff to establish its 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. See id. For the
purposes of an inquest, a court accepts as true all factual allegations in the complaint, except
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those claims relating to damages. See Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir.
1981).
B. Default Judgment Liability
In this case, plaintiff alleges that defendant breached the contract by failing to timely pay
rent. To establish a breach of contract under New York law3, a plaintiff must establish “the
existence of a contract, the plaintiff’s performance pursuant to the contract, the defendant’s
breach of his or her contractual duties, and damages resulting from the breach.” 25 Bay Terrace
Assocs., L.P. v. Public Serv. Mut. Ins. Co., 194 A.D.3d 668, 670–71 (2d Dep’t 2021) (citing
Victory State Bank v. EMBA Hylan, LLC, 169 A.D.3d 963, 965 (2d Dep’t 2019)). Here, the
Court finds that plaintiff has adequately alleged the existence of the lease, plaintiff’s
performance under the lease, defendant’s failure to pay rent according to its obligations under the
lease, and resultant damages.
Accordingly, it is respectfully recommended that plaintiff’s request for entry of a default
judgment be granted as to liability.
II. 	Damages
A. Legal Standard
When a default judgment is entered, the defendant is deemed to have admitted all well-
pleaded allegations in the Complaint pertaining to liability. See Greyhound Exhibitgroup, Inc. v.
E.L.U.L. Realty Corp., 973 F.2d at 158; Montcalm Publ’g Corp. v. Ryan, 807 F. Supp. 975, 977
(S.D.N.Y. 1992). If the claim is for a sum certain, the clerk of the court may enter a default
judgment for the amount stated in the complaint. See Fed. R. Civ. P. 55(b)(1). If “the amount is
liquidated or susceptible of mathematical computation,” no additional evidentiary hearing or
3 The lease contains a choice of law provision applying New York law. (Compl. ¶ 45). Accordingly, the Court
applies New York law in analyzing the elements for a breach of contract.
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submission is necessary. Integrity Elecs., Inc. v. Garden State Distribs., Inc., No. 09 CV 2367,
2012 WL 1041831, at *6 (E.D.N.Y. Jan. 6, 2012) (citing Vierling Commc’ns GMBH v. Stroyls,
09 CV 6654, 2011 WL 5854625, at *1 (S.D.N.Y. Sept. 16, 2011)). Moreover, in the Court’s
damages calculation, “plaintiff is entitled to all reasonable inferences from the evidence it
offers.” Id.
B. Damages Requested by Plaintiff
Plaintiff submitted a damages chart along with its motion for default judgment. (ECF No.
13-5). Therein, plaintiff lists $112,371.69 in accrued base rent, $240,032.32 in accelerated rent,
$14,096.16 in late charges, and $40,798.89 in interest accrued as of May 2025 when the present
motion was filed. (Id.) Plaintiff’s requested damages total $407,299.06. (Id.; Mot. at 3).
1) 	Unpaid Rent
Plaintiff alleges that the lease commenced on June 2, 2023 and seeks unpaid rent from
February 2, 2024—the date of defendant’s nonpayment—through August 2, 2024, the last date
rent was due before plaintiff accelerated the rent in September 2024. (Compl. ¶ 23; Mot. at 2–3;
ECF No. 13-5). The base rent from June 2, 2023 through June 1, 2024 was $15,916.67 per
month. (Compl. ¶ 26). The base rent from June 2, 2024 through June 1, 2025 was $16,394.17.
(Id.) Plaintiff alleges that defendant has failed to pay regular rent from February 2024 until
plaintiff accelerated the rent in September 2024. (Id. ¶¶ 29, 39, 41, 42). Thus, defendant missed
5 payments in the amount of $15,916.67 and 2 payments of $16,394.17.
The Court has reviewed plaintiff’s calculations and respectfully recommends that
plaintiff be awarded $112,371.69 in unpaid base rent.
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2) 	Accelerated Rent
In September 2024, plaintiff served defendant with a demand for accelerated rent in the
amount of $240,032.32. (Compl. ¶¶ 41-42). Under the lease, the landlord may accelerate the
aggregated rent under the contract minus the value of the premises, both discounted at the rate of
4% per annum. (Id. ¶¶ 40-41).
From September 2024, when the rent was accelerated, through June 1, 2025, the base rent
was $16,394.17 per month, or $163,941.70 total over the term. (Id. ¶ 26). From July 1, 2025,
through the end of the lease term on June 1, 2026, the base rent was $16,885.99 per month, or
$202,631.88 total over the term. (Id.) Thus, the total amount of rent remaining on the lease from
the date of acceleration until the end of the term was $366,573.58.
As noted supra, the lease authorizes the landlord to accelerate the aggregated rent under
the contract by discounting the aggregated rent remaining under the lease and then subtracting
from that figure the discounted value of the premises. Using the total amount of rent remaining
of the lease from the date of acceleration until the end of the term – $366,573.58 – the Court
determined that from the date of acceleration – September 27, 2024 – until the end of the lease
term on June 1, 2026, there remained approximately 612 days on the original lease term, or 1.676
years. The remaining term of 1.676 years was then multiplied by the $366.573.58 in accelerated
rent and the interest rate of 0.04% ($366,573.58 x 1.676 x 0.04), resulting in a discount of
$24,575.09. When the discounted amount is subtracted from the total amount of rent remaining
under the lease, the total discounted aggregated rent amounts to $341,998.49 ($366,573.58 -
$24,575.09).
Rent Remaining 	x 	Term Remaining 	x 	Discount Rate = 	Discount
$366,573.58 	x 	1.676 	years 	x 	0.04 	= 	$24,575.09
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The next step in determining the accelerated aggregated rent under the lease requires
determining the discounted value of the premises, again using a discount rate of four percent per
annum.
Although plaintiff provides a total accelerated aggregated rent of $240,032.32, suggesting
that the discounted value of the premises is $101,966.09, plaintiff fails to explain how that figure
was arrived at and has not provided the Court with the value of the premises, leaving the Court
unable to determine the discounted value of the premises.
In the absence of additional information, including the assumed value of the premises and
the basis for that assumption, the Court respectfully recommends that plaintiff’s request for
accelerated rent be denied without prejudice.
3) 	Interest and Late Charges
The lease further provides that the tenant “shall pay as Additional Rent hereunder to
Landlord a late charge of four cents ($.04) for each dollar of the amount of such Rent that shall
have not been paid to Landlord when due.” (Compl. ¶ 48). Plaintiff calculates that amount to be
$14,096.16. (Compl. ¶ 66; ECF No. 13-5).
As discussed supra, the base rent from the date of nonpayment through June 2024 was
$15,916.67. Thus, for each month defendant missed a payment during this time, it owes an
additional $636.66. Defendant missed five payments during this time and therefore owes an
additional $3,183.33 in late charges.
The base rent from June 2024 through the date of acceleration was $16,394.17. Thus, for
each month defendant missed a payment during this time, it owes an additional $655.76. Since
defendant missed two payments during this time, it therefore owes an additional $1,311.52 in late
charges.
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Additionally, the lease sets out that “Tenant shall pay interest thereon from the date due
until the date paid at an annual rate equal to four (4) percentage points above the rate then most
recently announced by Citibank, N.A., New York, New York or its successor, as its corporate
base lending rate, which rate may change from time to time.” (Compl. ¶ 48). Plaintiff alleges
that this combined interest rate was 12.5% from the date of defendant’s first missed payment
until August 2024, 12.43% in August 2024, and 12% in September when plaintiff accelerated the
rent. (ECF No. 13-5). To determine the interest owed, the Court must multiply the rent due each
month by each month’s respective combined interest rate and the number of years between each
respective month and the date of judgment:
Base Rent Due 	x 	Combined Interest Rate 	x 	Number of Years 	= 	Interest
However, the Court cannot determine the interest due until plaintiff provides the Court
with the information necessary to calculate the aggregated rent due. Accordingly, the Court
respectfully recommends that plaintiff’s request for interest be denied without prejudice.
Plaintiff also seeks $9,601 in late charges on the accelerated rent owed. (ECF No. 13-5).
However, because the Court cannot calculate the accelerated rent due under the lease, it cannot
calculate the late charges due on that amount. Accordingly, the Court respectfully recommends
that the district court deny plaintiff’s request for late charges due on the accelerated rent, without
prejudice to renew at such time as plaintiff provides further support for its calculation of
accelerated rent.
The Court does recommend that plaintiff’s request for late charges on rent due from
February 2024 through August 2024 in the amount of $4,494.85 be granted. Additionally,
assuming plaintiff supplements its motion, the Court respectfully recommends that the district
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court Order plaintiff to supply citations to the Citibank, N.A. interest rates utilized so that the
Court may accurately calculate the amounts owed under the lease.
4) 	Pre-Judgment Interest
Plaintiff also seeks pre-judgment interest. (See Amodio Decl.4 ¶ 4(a)-(f)). A prevailing
party to a breach of contract action is entitled to recover prejudgment interest under New York
law. Wells Fargo Bank, N.A. v. Nat’l Gasoline, Inc., 577 Fed. App’x 58, 61 (2d Cir. 2014)
(Summary Order). Prejudgment interest is applied at a rate of 9% per annum until the date of
final judgment. N.Y. C.P.L.R. § 5004. Where a plaintiff’s damages change over time, courts
utilize the approximate midpoint between the first date of breach and the final date of judgment.
See Days Inns Worldwide, Inc. v. Hospitality Corp. of the Carolinas, No. 13 CV 8941, 2015 WL
5333847, at *5 (S.D.N.Y. Sept. 14, 2015) (citing Manzo v. Sovereign Motor Cars, Ltd., No. 08
CV 1229, 2010 WL 1930237, at *12 n. 21 (E.D.N.Y. May 11, 2010)); Angamarca v. Pita Grill 7
Inc., No. 11 CV 7777, 2012 WL 3578781, at *9 (S.D.N.Y. Aug. 2, 2012)).
However, “a plaintiff is barred from collecting statutory interest on the principal where it
has already collected contractual interest on the same amount.” First Horizon Bank v. Moriarity-
Gentile, No. 10 CV 289, 2012 WL 4481509, at *5 (E.D.N.Y. Aug. 17, 2012) (citation omitted),
report and recommendation adopted by, 2012 WL 4481453 (E.D.N.Y. Sept. 27, 2012). Where “a
party fails to make contractual interest payments prior to acceleration of the principal,
prejudgment interest is awarded on those amounts.” Id. (quotation and citation omitted). Again,
however, the Court cannot calculate interest without knowing the principal. Thus, the Court
respectfully recommends that the district court deny plaintiff’s request for prejudgment interest
4 Citations to “Amodio Decl.” refer to the Declaration of Daniel Amodio filed on May 15, 2025 in support of
plaintiff’s motion for sum certain default judgment (ECF No. 13-4).
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without prejudice until the plaintiff provides the Court with the information necessary to
calculate the accelerated rent due under the lease.
5) 	Post-Judgment Interest
Additionally, the Court respectfully recommends that plaintiff is entitled to post-judgment
interest under 28 U.S.C. § 1961(a). Under Section 1961(a), interest is calculated “from the date
of the entry of the judgment, at a rate equal to the weekly average 1-year 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). The Second Circuit
has held that post-judgment interest is mandatory on all awards in civil cases as of the date
judgment is entered. Lewis v. Whelan, 99 F.3d 542, 545 (2d Cir. 1996). Accordingly, it is
respectfully recommended that plaintiff be awarded post-judgment interest at the statutory rate,
as calculated by the Clerk of Court, to the extent that any accrues after entry of judgment.
6) 	Attorney’s Fees
Plaintiff seeks attorney’s fees “in amount to be determined by this Court.” (Amodio Decl. ¶
4(c); Compl. ¶¶ 61-63). Indeed, the lease provides for attorney’s fees to the prevailing party in
litigation to enforce the lease. (Compl. ¶ 45). However, counsel has provided no
contemporaneous billing records or invoices from which the Court can determine the
reasonableness of the fee. See Cabrera v. Schafer, No. 12 CV 6325, 2017 WL 9512409, at *5–7
(E.D.N.Y. Feb. 17, 2017) (discussing the need for records for both federal and state law claims),
report and recommendation adopted by, 2017 WL 1162183 (E.D.N.Y. Mar. 27, 2017). In the
absence of any information or records from which the Court can determine counsel’s hourly rate,
number of hours billed, or work performed, the Court respectfully recommends that any request
for fees be denied without prejudice to plaintiff supplementing its request with the necessary
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information. Counsel also has failed to provide any invoices from which the Court can
determine the costs sought. Accordingly, the Court respectfully recommends that the district
court deny plaintiff’s request for fees and costs without prejudice to further supplementation.
III. 	Damages Chart
Unpaid Rent 	$ 	112,371.69
Late Charges 	$ 	4,494.85
TOTAL Before Interest 	$ 	116,866.54
CONCLUSION
The Court respectfully recommends that plaintiff’s motion for entry of a default judgment
be granted, and that plaintiff be awarded $116,866.54 in damages, not including interest, as
follows: (1) $112,371.69 in unpaid rent; and (2) $4,494.85 in late charges. The Court also
recommends that the district court deny without prejudice plaintiff’s request for accelerated rent,
late charges as they apply to accelerated rent, and interest. The Court also respectfully
recommends the district court deny plaintiff’s request for attorney’s fees and costs without
prejudice. Additionally, the Court respectfully recommends that, if plaintiff is to supplement its
motion, the district court Order plaintiff to provide the Court with (1) the value of the premises
used in calculating the accelerated rent due under the lease and plaintiff’s basis for that valuation
and (2) citations to the Citibank, N.A. corporate base rates used to calculate interest under the
lease.
Any objections to this Report and Recommendation must be filed with the Clerk of the
Court, with a copy to the undersigned, within fourteen (14) days of receipt of this Report. 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
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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).
The Clerk is directed to send copies of this Order to the parties either electronically
through the Electronic Case Filing (ECF) system or by mail.
SO ORDERED.
Dated: Brooklyn, New York
January 2, 2026 /s/ Cheryl L. Pollak
Cheryl L. Pollak
United States Magistrate Judge
Eastern District of New York
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