Fitzpatrick v. Borghi

1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
X
ANN FITZPATRICK,
Plaintiff,
REPORT AND
RECOMMENDATION
-against- 	25-cv-03600-NGG-JMW
MARK BORGHI,
Defendant.
X
A P P E A R A N C E S:
Aaron M. Goldsmith, Esq.
The Gold Law Firm, PC
1666 Newbridge Road, 2nd Floor
Bellmore, NY 11710
Attorney for Plaintiff
No Appearance for Defendant
WICKS, Magistrate Judge:
Plaintiff Ann Fitzpatrick (“Plaintiff”) commenced this action on June 27, 2025 seeking to
recover $93,500.00 allegedly due to her as a result of Defendant Mark Borghi’s (“Defendant”)
breach of a consignment agreement (“Agreement”). The Agreement provided that Defendant
agreed to market and sell Plaintiff’s Joan Mitchell painting (“Painting”) and deliver the full
proceeds of such sale to Plaintiff. (See generally ECF No. 1.) According to Plaintiff, Defendant
sold the Painting for $173,500.00 but has only remitted $80,000.00 to Plaintiff. (See id. at ¶ 10.)
Before the Court on referral from the Hon. Nicholas G. Garaufis is Plaintiff’s unopposed
Motion for Default Judgment (ECF No. 13) against Defendant seeking to recover the $93,500.00
3/5/2026
FILED
CLERK
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
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still owed to her under the Agreement. For the following reasons, the undersigned respectfully
recommends that the District Judge GRANT Plaintiff’s motion (ECF No. 13) and award the
damages as set forth below.
FACTUAL BACKGROUND
The following allegations are drawn from the Complaint. (ECF No. 1.) Plaintiff is the
owner of the Painting that Defendant, “an art dealer engaged in the business of buying and
selling works of art,” sought to sell at his then-existing art gallery in Bridgehampton, New York.
(Id. at ¶¶ 2-5.) In 2024, Defendant allegedly “solicited from Plaintiff [] for the consignment” of
the Painting and Plaintiff and Defendant “entered into a consignment agreement” through an
exchange of text messages, wherein Defendant was to market and sell the Painting at an agreed
price of $195,000.00. (Id. at ¶¶ 5, 8.)
On December 7, 2024, Defendant represented to Plaintiff that he sold the Painting for
$173,500.00 as reflected in the Sale Statement that Defendant provided to Plaintiff. (Id. at ¶ 9; id.
at pp. 8-9.) Defendant then proceeded to pay Plaintiff $80,000.00 for the sale of the Painting and
nothing further despite multiple promises to do so. (See id. at ¶¶ 10, 13.) According to Plaintiff,
though Defendant admitted to selling the Painting for $173,500.00, Defendant has provided no
documentary proof that the Painting sold for that amount. (See id. at ¶ 19.) Indeed, though
“Plaintiff is not aware of the exact amount for which [the Painting] was sold,” Plaintiff alleges
that she is “owed a minimum of” $93,500.00—the difference between $173,500 and $80,000—
plus interest from December 7, 2024. (Id. at ¶ 12.)
Plaintiff posits that Defendant used the money he agreed to pay Plaintiff to “pay his
mortgage taxes and other expenses related to his primary residence.” (Id. at ¶ 14.) Similarly,
Plaintiff alleges that Defendant represented that he would promptly repay the proceeds to
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Plaintiff upon the sale of the Painting, despite knowing he would use part of the funds to remedy
his own “precarious financial condition” instead of satisfying his full obligation to Plaintiff. (Id.
at ¶¶ 23, 25.) Plaintiff contends that she would not have entered into the consignment agreement
but for the promise of prompt repayment, and due to Defendant’s excuses and false statements
while avoiding full repayment, alleges she was defrauded. (See id. at ¶¶ 24, 26.)
Accordingly, Plaintiff commenced the underlying action asserting causes of action for: (i)
breach of contract, (ii) accounting, (iii) fraud, and (iv) deceptive trade practices under New York
General Business Law (“GBL”) § 349. (Id. at pp. 2-5.) In her Complaint, Plaintiff seeks a
judgment ordering the payment of the $93,500.00 sum owed to Plaintiff plus interest from
December 7, 2024, an order directing Defendant to “account for the entire proceeds of the sale of
the Painting” and an order “compelling Plaintiff to disgorge the full amount of those proceeds
plus interest from December 7, 2024,” and compensatory damages resulting from Defendant’s
alleged fraud, and treble damages for the deceptive trade practices. (Id.)
The Court has subject matter jurisdiction based upon diversity since Plaintiff is an
individual domiciled in North Carolina, Defendant is an individual domiciled in New York, and
the amount in controversy exceeds $75,000, exclusive of costs and interest. (Id. at ¶¶ 2-3, 6); 28
U.S.C. § 1332(a).
PROCEDURAL BACKGROUND
Plaintiff filed the Complaint on June 27, 2025 (ECF No. 1) and thereafter served the
Summons and Complaint on Defendant by July 8, 2025. (ECF No. 6.) Upon receiving no
response from Defendant, Plaintiff requested a certificate of default against Defendant on August
21, 2025. (ECF No. 7.) This request was denied on September 5, 2025 for Plaintiff’s failure to
comply with Local Civil Rule 55.1. Plaintiff re-filed its request with the certificate of service in
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accordance with Local Civil Rule 55.1 on September 9, 2025 (ECF No. 8) which was granted by
the Clerk the same day. (ECF No. 9.) The Court then directed Plaintiff to either file a motion for
default judgment in accordance with the undersigned’s Individual Practice Rules or voluntarily
dismiss the case. (Electronic Order dated September 10, 2025.) Two days later, on September 12,
2025, Plaintiff filed its first motion for default judgment. (ECF No. 10.)
Upon preliminary review of the motion, the Court found the motion deficient for several
reasons: first, Plaintiff failed to “file a memorandum of law in support of its motion for default
judgment” in accordance with Local Civil Rule 55.2(a)(2); second, Plaintiff failed to “include in
its motion a ‘proposed order detailing the proposed judgment to be entered’” in compliance with
Local Civil Rule 55.2(a)(2); and third, Plaintiff failed to offer support or a sworn or affirmed
statement to establish a basis for its claimed attorney’s fees of $7,000.00, in compliance with
Local Civil Rule 55.2(c). (Electronic Order dated September 15, 2025.) As such, the Court
denied Plaintiff’s motion without prejudice and with leave to renew on or before October 10,
2025 upon properly submitting the motion in compliance with these requirements. (Id.)
On October 10, 2025, Plaintiff filed a motion for an extension of time to file its corrected
motion (ECF No. 11) which the undersigned granted the next day and extended the deadline to
October 17, 2025. (Electronic Order dated October 11, 2025.) Plaintiff filed its renewed motion
for default judgment on October 17, 2025. (ECF No. 12.) On October 22, 2025, Judge Garaufis
found that Plaintiff’s renewed motion was deficient in two regards: first, “Plaintiff’s default
judgment papers appear to contain requests for two different amounts”—$93,500 resulting from
the alleged underpayment (ECF No. 12) and $287,500 “in damages ‘to date’ along with
‘additional costs and legal fees expected to enforce any judgment therein.’” (ECF No. 12-1); and
second, “Plaintiff requests the court to “direct[] Counsel to submit a Bill of Costs” but under
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Local Rule 55.2(b) the Clerk cannot enter a default judgment when the judgment “seek[s]
attorney’s fees.” Judge Garaufis then directed Plaintiff to “renew [its] default judgment motion
[in accordance with] Local Civil Rule 55.2” by properly reconciling the contradictory damage
requests, providing a single amount for the court to enter, and a basis for that amount, and
“include[ing] a definite calculation of any requested attorney’s fees, as well as the factual and
legal basis supporting that calculation.” (See Electronic Order dated October 22, 2025.)
Plaintiff renewed its motion for default judgment on November 17, 2025 (ECF No. 13)
which Judge Garaufis referred to the undersigned for a Report and Recommendation two days
later. (Electronic Order dated November 19, 2025.) Upon preliminary review, the undersigned
found Plaintiff’s renewed motion noncompliant in two regards. (See Electronic Order dated
November 20, 2025.) First, Plaintiff did not comply with the Servicemembers Civil Relief Act,
50 U.S.C. App. § 521 by not filing an affidavit stating whether Defendant is serving in the
military, and second, Plaintiff failed to attach a “proposed order detailing the proposed judgment
to be entered” in accordance with Local Civil Rule 55.2(a)(2). (Id.) The Court directed Plaintiff
to properly submit the aforementioned documents on or before December 4, 2025, and to serve
on Defendant a copy of the Electronic Order upon Defendant, and file proof of such service on or
before November 25, 2025. (See id.) After Plaintiff failed to file proof of service by November
25, 2025 deadline, the Court permitted Plaintiff additional time until December 2, 2025 to file
such proof of service. (Electronic Order dated November 26, 2025.) Plaintiff thereafter complied.
(See ECF No. 14 (affidavit of service of November 20, 2025 Order); ECF No. 15 (affidavit of
non-military service); ECF No. 16 (proposed order)).
To date, Defendant has not appeared in this action. In its motion for default judgment,
Plaintiff requests entry of default against Defendant and seeks a judgment against Defendant
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ordering the payment of $93,500.00 and does not seek an award of attorneys’ fees, treble
damages, or other costs that she initially sought in her initial motion for default judgment. (ECF
No. 13-1 at p. 5; ECF No. 13, Goldsmith Decl. at ¶¶ 12-14.)
THE LEGAL FRAMEWORK
There is a two-step process for the granting of default judgments under Fed. R. Civ. P. 55.
First, as here, the Clerk of the Court enters default when a party fails to plead or otherwise
defend the action. See Fed. R. Civ. P. 55(a); see also E.D.N.Y. Local R. 55.1(b) and 55.2. After
the Clerk’s certificate of default is issued and posted on the docket, a party may apply for entry
of a default judgment. Fed. R. Civ. P. 55(b); see also E.D.N.Y. Local R. 55.2. The decision to
grant a motion for default is left to the discretion of the district court. United States v. Dougherty,
No. 15-cv-554 (ADS) (AKT), 2016 WL 5112063, at *3 (E.D.N.Y. Aug. 1, 2016), report and
recommendation adopted, 2016 WL 4705549 (E.D.N.Y. Sep. 7, 2016). Given that the Clerk has
already entered default against Defendant (ECF No. 9), the Court is primarily concerned with
Plaintiff’s compliance with E.D.N.Y. Local R. 55.2.
A default constitutes an admission of all well-pleaded factual allegations in the
complaint, except those relating to damages. See Greyhound Exhibitgroup, Inc. v. E.L.U.L.
Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992); see also Joe Hand Promotions, Inc. v. El Norteno
Rest. Corp., No. 06-cv-1878 (RJD) (JMA), 2007 WL 2891016, at *2 (E.D.N.Y. Sep. 28, 2007)
(finding that a default constitutes an admission of all well-pleaded factual allegations in the
complaint and the allegations as they pertain to liability are deemed true). The Court must
therefore ensure: (i) Plaintiff satisfied all the required procedural steps in moving for default
judgment, see Local Civ. R. 55.2,; and (ii) Plaintiff’s allegations, when accepted as true, establish
liability as a matter of law. See Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009).
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DISCUSSION
I. 	Procedural Compliance
Local Civil Rule 7.1 requires motions to include a notice of motion, a memorandum of
law, and supporting affidavits or exhibits containing any necessary factual information for the
decision of the motion. E.D.N.Y. Local R. 7.1(a)(1) - (3). Local Civil Rule 55.2 requires that a
party moving for default judgment append to its application an affidavit or declaration
demonstrating that (A) the Clerk has entered default against the defendant, (B) the movant has
complied with the SCRA, and (C) that the defendant is not a minor or incompetent person, as
well as all papers required by E.D.N.Y. Local R. 7.1 (supra), and a proposed judgment and
certificate of service that all documents in connection with the motion for default judgment has
been personally served on or mailed to the Defendant’s residence or business address. E.D.N.Y.
Local R. 55.2(a)(1) – (3). Recently added under the Local Rules, is that the moving party “must
file a statement of damages, sworn or affirmed to by one or more people with personal
knowledge, in support of the request, showing the proposed damages and the basis for each
element of damages, including interest, attorney’s fees, and costs.” E.D.N.Y. Local R. 55.2(c).
With respect to the non-military affidavit, before a default judgment can be entered for the
plaintiff, the SCRA commands that the Court “require the plaintiff to file with the court an
affidavit . . . stating whether or not the defendant is in military service and showing necessary
facts to support the affidavit.” 50 U.S.C. App. § 521; ADI Glob. Distribution v. Green, No. 20-
CV-03869 (AMD) (JMW), 2023 WL 3355049, at *3 (E.D.N.Y. Apr. 24, 2023), report and
recommendation adopted, 2023 WL 3346499 (E.D.N.Y. May 10, 2023).
Here, Plaintiff submitted an exhibit of the SCRA Affidavit of Non-Military Service for
Defendant (ECF No. 15 at pp. 4-9) and the affidavit of Aaron M. Goldsmith who conducted a
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search of the Department of Defense’s Servicemembers Civil Relief Act Website which revealed
that Defendant is not a member of the military. (ECF No. 15, Goldsmith Aff. at ¶¶ 4-5.) These
efforts comply with the SCRA. See McLaugulin v. Onanafe Management Solutions LLC, No, 22-
CV-6792 (PKC) (MMH), 2024 WL 4184485, at *6 (E.D.N.Y. Sept. 14, 2024) (noting the SCRA
requirement is complied with where plaintiff files a declaration stating that an individual
defaulting defendant was not a member of the military after performing a search of the
Department of Defense database).
Plaintiff’s motion further complies with Local Rule 7.1 and Local Rule 55.2(a) because it
includes (1) a notice of motion (ECF No. 13); (2) a memorandum of law (ECF No. 13-1); (3)
affidavits and exhibits to support Plaintiff’s contentions (see ECF Nos. 13-1; 13-2; 13-3; 13-4;
13-5); and (4) a proposed order detailing the proposed judgment. (ECF No. 16.) The motion
further complies with Local Rule 55, as Plaintiff properly attached and submitted a declaration
affirming that the Certificate of Default was entered by the Court on September 9, 2025 (ECF
No. 13-4) and a declaration that Defendant was not a minor or incompetent person. (ECF No. 13-
4 at p. 2, Fitzpatrick Aff. at ¶ 5.) Plaintiff also filed an affidavit of service of the requisite
documents via first class mail. (ECF No. 13 at p. 6.) Accordingly, the Court finds that Plaintiff’s
Motion for Default Judgment is procedurally proper and now turns to the merits of the Motion.
II. 	Applying the Default Factors
In evaluating whether to grant a default judgment, courts consider: (i) whether the
defendant’s default is willful; (ii) whether the defendant has a meritorious defense to plaintiff’s
claims; and (iii) the level of prejudice the non-defaulting party would suffer if the motion for
default judgment is denied. See Trustees of Empire State Carpenters Annuity, Apprenticeship,
Lab. Mgmt. Co-op., Pension & Welfare Funds v. Flooring Experts, Inc., No. 12-CV-6317
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(ADS)(AKT), 2013 WL 4042357, at *2 (E.D.N.Y. Aug. 8, 2013), report and recommendation
adopted, 2013 WL 4761151 (E.D.N.Y. Sep. 3, 2013). Consideration of these three factors leads
to a recommendation that an entry of default judgment is appropriate where, as here, Defendant
has wholly failed to appear and present any defense, and Plaintiff is left with no further steps to
take secure relief. ADI Glob. Distribution, 2023 WL 3355049, at *4.
III. 	Jurisdiction
a. 	Personal Jurisdiction
When a defendant fails to appear, “before a court grants a motion for default judgment it
may first assure itself that it has personal jurisdiction over the defendant.” Sinoying Logistics Pte
Ltd. v. Yi Da Xin Trading Corp., 619 F.3d 207, 213 (2d Cir. 2010). Since a judgment rendered
against a defendant over whom the Court does not have personal jurisdiction can be vacated
pursuant to Rule 60(b)(4), it “‘preserves judicial economy for the court to assess personal
jurisdiction from the outset and thereby avoid rendering a void judgment.’” ADI Glob.
Distribution, 2023 WL 3355049, at *3 (citation omitted). Here, a sua sponte assessment of
personal jurisdiction is appropriate because Defendant has failed to appear in this action. Id.
For a court to exercise personal jurisdiction: (i) a plaintiff must complete proper service
of process, (ii) there must be a statutory basis for personal jurisdiction that renders such service
of process effective, and (iii) the exercise of personal jurisdiction must comport with
constitutional due process principles. See Licci ex rel. Licci v. Lebanese Canadian Bank, SAL,
673 F.3d 50, 60-61 (2d Cir. 2012).
Rule 4(c) requires that a summons must be served with a copy of the Complaint and by a
person who is at least 18 years old and not a party to the case. See Fed. R. Civ. P. 4(c).
Additionally, Rule 4(e)(1) permits service on individuals to be made “pursuant to the law of the
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state in which the district court is located.” Under New York law, personal service may be
effectuated on an individual:
[W]here service under paragraphs one and two cannot be made with due diligence,
by affixing the summons to the door of either the actual place of business, dwelling
place or usual place of abode within the state of the person to be served and by
either mailing the summons to such person at his or her last known residence or by
mailing the summons by first class mail to the person to be served at his or her
actual place of business in an envelope bearing the legend “personal and
confidential” ….
N.Y. C.P.L.R. § 308(4).
Here, Plaintiff served Defendant by affixing a true copy of the Summons to the door of
Defendant’s dwelling and by mailing the Summons in an envelope labelled “Personal and
Confidential” by mail to Defendant’s last known address—9 Seaponack Drive, Sag Harbor, New
York 11963. (See ECF No. 6.) Before doing so, however, Plaintiff attempted to personal serve
Defendant at this residential address on four separate weekdays at differing times of day and was
met with no answer and no information regarding Defendant. (See id.) These service attempts
amount to “due diligence” under New York law, thereby permitting service under § 308(4). See
Gross Foundation, Inc. v. Goldner, 12-CV-1496 (ILG) (RER), 2012 WL 6021441, at *4
(E.D.N.Y. Dec. 4, 2012) (“New York courts have held that three attempts at personal service on
the defendant at his residence when the defendant could reasonably be expected to be there, on
different days of the week and at different times, constitutes due diligence”); Weifang Xinli
Plastic Products v. JBM Trading Inc., No. 11-CV-2710 (WFK) (LB), 2014 WL 4244258, at *3
(E.D.N.Y. Aug. 26, 2014) (finding that in order to demonstrate “due diligence” before allowing
service under § 308(4), “cases have required approximately three attempts at service, optimally
on non-consecutive days”) (collecting New York State cases). Accordingly, service upon
Defendant was proper under New York law.
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i. 	General Jurisdiction
“To analyze whether a court has general jurisdiction over an individual, the ‘paradigm
forum’ is the individual's domicile.” Financial Services Vehicle Trust v. Samaroo, No. 24-cv-
4512 (FB) (JMW), 2025 WL 1446908, at *5 (E.D.N.Y. Apr. 21, 2025) (quoting Daimler AG v.
Bauman, 571 U.S. 117, 137 (2014)), report and recommendation adopted, 2025 WL 1446037
(E.D.N.Y. Apr. 21, 2025). Similarly, “[f]or general jurisdiction over an individual to comport
with due process, Defendants must be domiciled in New York, served in New York, or have
otherwise consented to the court's jurisdiction.” Reich v. Lopez, 38 F. Supp. 3d 436, 455
(S.D.N.Y. 2014).
Here, though Plaintiff alleges Defendant is an individual “residing” in Sag Harbor, New
York (ECF No. 1 at ¶ 3), “residency alone is insufficient to prove a person’s domicile.” Samaroo,
2025 WL 1446908, at *5; see Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48
(1989) (“‘Domicile’ is not necessarily synonymous with ‘residence,’ and one can reside in one
place but be domiciled in another.” (internal citations omitted)); see also Molokotos-Liederman v.
Molokotos, No. 23 Civ. 1654 (VM), 2023 WL 5977655, at *6 (S.D.N.Y. Sept. 14, 2023) (“[A]s
courts have remarked, physical residence alone is not sufficient to ascertain a party's domicile for
the purposes of establishing ... subject matter jurisdiction.”).
Moreover. though service was properly effectuated in accordance with N.Y. C.P.L.R. §
308(4), this does not confer general jurisdiction over a defendant because Defendant was not
“personally served” while in New York. See Owens v. Ronemus, No. 23 Civ. 3036 (PGG), 2024
WL 3105605, at *4 (S.D.N.Y. June 24, 2024) (emphasizing that a defendant must be served
while physically present within New York to confer general jurisdiction over him and noting the
extreme absence of case law supporting a finding of general jurisdiction absent a showing of
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personal service). Additionally, the record is devoid of any indication that Defendant consented
to jurisdiction in New York. Accordingly, because the Court does not have general jurisdiction
over Defendant, the Court now considers whether there is specific jurisdiction under New York’s
long-arm statute.
ii. 	Specific Jurisdiction
Pursuant to New York's long-arm statute, C.P.L.R. 302(a), a court “may exercise personal
jurisdiction over any non-domiciliary ... who in person or through an agent ... transacts any
business within the state,” as long as the Plaintiff's “cause of action aris[es] from” that
“transact[ion].” This is known as specific jurisdiction and sometimes referred to as long-arm
jurisdiction. To exercise specific jurisdiction through New York's long-arm statute, “two
requirements must be met: (1) The defendant must have transacted business within the state1;
and (2) the claim asserted must arise from that business activity.” Sole Resort, S.A. de C.V. v.
Allure Resorts Mgmt., LLC, 450 F.3d 100, 103 (2d Cir. 2006) (citation omitted). “Section 302(a)
also requires that the claims asserted ‘aris[e] from any of the acts’ that provide the basis for
exercising jurisdiction.” Sea Tow Servs. Int'l, Inc. v. Pontin., 472 F. Supp. 2d 349, 360 (E.D.N.Y.
2007) (quoting CPLR § 302(a)). “[A] claim ‘aris[es] from’ a particular transaction when there is
1 “To determine whether a party has ‘transacted business’ in New York, courts must look at the totality of
circumstances concerning the party's interactions with, and activities within, the state.” D.H. Blair & Co.
v. Gottdiener, 462 F.3d 95, 105 (2d Cir. 2006). Courts consider the following factors:
(i) whether the defendant has an on-going contractual relationship with a New York
corporation; (ii) whether the contract was negotiated or executed in New York and whether,
after executing a contract with a New York business, the defendant has visited New York
for the purpose of meeting with parties to the contract regarding the relationship; (iii) what
the choice-of-law clause is in any such contract; and (iv) whether the contract requires
franchisees to send notices and payments into the forum state or subjects them to
supervision by the corporation in the forum state.
Sunward, Inc., 362 F.3d 17 at 22 (quotations omitted) (internal citations omitted).
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‘some articulable nexus between the business transacted and the cause of action sued upon.’” Id.
(quoting Sole Resort, 450 F.3d at 103). Here, Defendant is an art dealer engaged in the business
of selling and buying works of art from his gallery located in Bridgehampton, New York. (ECF
No. 1 at ¶ 4.) From this gallery, Defendant solicited from Plaintiff for the consignment of the
Painting forming the basis of this dispute. (Id. at ¶¶ 4-5.) Similarly, the transaction underlying
this lawsuit—the agreement to sell the Painting—took place in New York as reflected by the Sale
Statement (id. at p. 8) and Defendant’s payment of $80,000.00 to Plaintiff occurred in New York.
(See id. at ¶¶ 8, 10, 15.)
The exercise of long arm jurisdiction over a defendant by a New York court must also
satisfy constitutional due process standards. Licci, 673 F.3d at 60. To satisfy the requirements of
due process, the defendant’s activities in New York must constitute “some act by which the
defendant purposefully avails itself of the privilege of conducting activities within the forum
States, thus invoking the benefits and the protection of its laws.” Best Van Lines, Inc. v. Walker,
490 F.3d 239, 246 (2d Cir. 2007) (cleaned up). This involves a two-fold inquiry: (1) “minimum
contacts,” and (2) “reasonableness.” Sea Tow Servs. Int'l, 472 F. Supp. 2d at 360. First, the
Court is satisfied that Plaintiff’s claims arise out of Defendant’s contacts with New York and
support specific jurisdiction because this lawsuit stems from the very transaction Defendant was
a part of and derives from Defendant’s actions within his New York business practice of selling
artworks.
Second, the exercise of specific jurisdiction over Defendant is reasonable. The factors
supporting this conclusion include:
(1) the burden that the exercise of jurisdiction will impose on the defendant; (2)
the interests of the forum state in adjudicating the case; (3) the plaintiff’s interest
in obtaining convenient and effective relief; (4) the interstate judicial system’s
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interest in obtaining the most efficient resolution of the controversy; and (5) the
shared interest of the states in furthering substantive social policies.
Id. (quoting Asahi Metal Indus. Co., Ltd. v. Superior Ct. of Calif., Solano Cty., 480 U.S. 102, 113
(1987)).
The circumstances here demonstrate the reasonableness required for Defendant to
anticipate being sued in New York for matters relating to and arising from the sale of Plaintiff’s
Painting. See Samaroo, 2025 WL 1446908, at *6 (quoting Licci, 763 F.3d at 170) (“It would be
unusual, indeed, if a defendant transacted business in New York and the claim arose from that
business activity within the meaning of section 302(a)(1), and yet, in connection with the same
transaction of business, the defendant cannot be found to have “purposefully availed itself of the
privilege of doing business in the forum and [to have been able to] foresee being haled into court
there.”). The Court finds the remaining factors to be neutral, and given the Defendant’s default, it
has not been provided, nor does it find, any reason why exercise of specific jurisdiction over
Defendant would be unreasonable. Accordingly, the Court has specific jurisdiction over
Defendant.
IV. 	Liability
When a defendant defaults, the court “is required to accept all of the [plaintiff’s] factual
allegations as true and draw all reasonable inferences in its favor[.]” Finkel, 577 F.3d at 84. A
defendant’s default is considered an admission of all well-pleaded allegations of liability. See
Greyhound Exhibitiongroup, Inc., 973 F.2d at 158.
a. 	Statute of Limitations
Before addressing the merits of Plaintiff’s claims, the Court must determine if the
Plaintiff brought its claims in a timely manner. See Quintero v. Angels of the World, Inc., No. 19-
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cv-6126 (DG), 2021 WL 4464123, at *3 (E.D.N.Y Sep. 10, 2021) (analyzing the statute of
limitations to ensure the causes of action were not time barred before delving into th merits of
each), report and recommendation adopted, 2021 WL 4463488 (E.D.N.Y. Sep. 29, 2021).
Under N.Y. C.P.L.R. § 213(2), “[a]n action for breach of contract must be brought within
six years of the date of the breach.” Additionally, an action for accounting is governed by a six-
year statute of limitations and begins to run at the time of each wrongful transaction occurs. See
Kermanshah v. Kermanshah, 580 F. Supp. 2d 247, 269 (S.D.N.Y. 2008) (citing N.Y. C.P.L.R. §
213(1)). Similarly, fraud claims have a six-year statute of limitations from the date the alleged
fraud occurred. Malmsteen v. Berdon, LLP, 477 F. Supp. 2d 655, 663 (S.D.N.Y. 2007) (citing
N.Y. C.P.L.R. § 213(8). Further, for claims “brought under New York General Business Law §
349, the statute of limitations is three years from the date of accrual, ‘which occurs when
plaintiff is injured by the deceptive act or practice that violated the statute,’ and ‘is not dependent
upon any date when discovery of the alleged deceptive practice is said to occur.’” Medical
Herald Pub. Co., Inc. v. J.P. Morgan Chase Bank, N.A., No. 13 Civ. 6979 (AT), 2014 WL
6769755, at *4 (S.D.N.Y. Nov. 25, 2014) (quoting Statler v. Dell, Inc., 841 F. Supp. 2d 642, 648
(E.D.N.Y. 2012)) (citations omitted).
Plaintiff commenced this action on June 27, 2025. (See ECF No. 1.) As Plaintiff alleges,
Defendant made the allegedly fraudulent misrepresentations “[i]n or about 2024” and failed to
pay Plaintiff the full sum owed under the Agreement on December 7, 2024. (Id. at ¶¶ 5, 15.)
Accordingly, Plaintiff’s causes of action for breach of contract, accounting, fraud, and deceptive
trade practices are all timely.
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b. 	Breach of Contract
As a preliminary matter, this Court notes that New York law applies to Plaintiff’s breach
of contract claim. The Court has subject matter jurisdiction on the basis of diversity jurisdiction
under 28 U.S.C. § 1332. (ECF No. 1 at ¶ 6.) As such, the substantive law to be applied is state
law. Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938). “A federal court sitting in diversity must
apply the choice of law rules of the forum state.” Lazard Freres & Co. v. Protective Life Ins. Co.,
108 F.3d 1531, 1538 (2d Cir. 1997). New York courts consider “a spectrum of significant
contacts, including the place of contracting, the places of negotiation and performance, the
location of the subject matter, and the domicile or place of business of the contracting parties.”
Id. at 1539. Here, New York law applies because of the significant contacts in this case, namely
that the injury rising to the current dispute was based on a New York resident’s failure to remit
payment to Plaintiff in New York and Plaintiff relies exclusively on New York law in its
submissions. Romco Structural Sys. Corp. v. Axis Ins. Co., 596 F. Supp. 3d 464, 470-71
(E.D.N.Y. 2022).
To state a claim for breach of contract under New York law, a plaintiff must allege: (1)
the existence of a contract; (2) performance by the plaintiff; (3) defendant’s breach; and (4)
damages resulting from the breach. Dee v. Rakower, 976 N.Y.S.2d 470, 474 (App. Div. 2d Dep’t
2013); Edwards v. Sequoia Fund, Inc., 938 F.3d 8, 12 (2d Cir. 2019).
i. 	Existence of a Valid and Enforceable Contract
Plaintiff alleges that the parties entered into a consignment agreement via text message
pursuant to which Defendant was to market and sell the Painting for an agreed price of $195,000.
(ECF No. 1 at ¶ 8; see ECF No. 13-5 (text message communications between Plaintiff and
Defendant); see also ECF No. 13-4, Fitzpatrick Decl. at ¶ 12). The Sale Statement dated
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December 7, 2024 reflects the terms of this Agreement, includes the final sale price by
Defendant of $173,500, and is signed by Defendant. (ECF No. 1 at pp. 8-9.)
To create a binding contract under New York law, there must be an offer, acceptance, and
consideration. Broder v. Cablevision Sys. Corp., 329 F. Supp. 2d 551, 556 (S.D.N.Y. 2004).
Specifically, “there must be a manifestation of mutual assent sufficiently definite to assure that
the parties are truly in agreement with respect to all material terms.” Demand Elec., Inc. v.
Innovative Tech. Holdings, LLC, 665 F. Supp. 3d 498, 504 (S.D.N.Y. 2023) (emphasis added)
(quoting Express Indus. & Terminal Corp. v. N.Y. State Dep’t of Transp., 715 N.E.2d 1050, 1053
(N.Y. 1999)). “Consideration to support an agreement exists where there is either a benefit to the
promisor or a detriment to the promise.” Id. (quoting Guzman v. Ramos, 139 N.Y.S.3d 648, 651
(App. Div. 2d Dep’t 2021)).
“Under a consignment agreement, one party contracts to transfer possession goods to
another for the purpose of resale . . . and in a consignment agreement, the ‘title remains in the
party supplying the goods (the consignor) until the transferee (the consignee) exercises an option
to take title to the goods once certain conditions are met.’” Usov v. Marc Lazar, Inc., 263 F. Supp.
3d 436, 445 (S.D.N.Y. 2017) (quoting United States v. Nektalov, 440 F. Supp. 2d 287, 298
(S.D.N.Y. 2006)). “Title and the right to immediate possession of the goods remains with the
consignor until the option is exercised. Once the option is exercised, title passes to the
consignee.” Nektalov, 440 F. Supp. 2d at 298. Given this contractual relationship, a
“consignment agreement . . . is not a ‘sale of goods’” governed by the U.C.C. but rather is an
“agency with a bailment.” Usov, 263 F. Supp. 3d at 445; Nektalov, 440 F. Supp. 2d at 298.
Here, the Sale Statement and corresponding text messages between the parties suggest
that the parties entered into a binding agreement for the sale of the Painting. The Sale Statement
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lists essential terms to the agreement such as quantity, price of the sale of the Painting
($173,500.00), description of the Painting, the date of sale, and contains the addresses of the
parties. (See ECF No. 1 at pp. 8-9.)
Moreover, as noted in the text messages dated December 4, 2024, Plaintiff asked
Defendant whether he was “any closer to a sale” to which Defendant responded “yes, we settled
at [$175,000] over the weekend” thereby indicating a meeting of the minds with respect to the
parties’ respective contractual obligations—Plaintiff delivering the Painting to Defendant and
Defendant negotiating and selling the Painting for Plaintiff. (See ECF No. 13-5 at pp. 1-2.)
Further, on February 28, 2025, the parties discussed the final sale price of the Painting, the price
Defendant negotiated the Painting for, and how much commission Defendant would take in
accordance with their agreement. (See id. at pp. 16-21.) Indeed, leading up to the sale, Plaintiff
texted Defendant to confirm that he would be selling the Painting to which Defendant responded
that he would. (See id. at p. 5 (Defendant responding “yes it will be done” when asked if the
Painting will be sold in the “next two weeks”)). The Sale Statement and text messages between
the parties before and after the sale of the Painting are sufficient to show that the parties entered
into a valid consignment agreement. Usov, 263 F. Supp. 3d at 445-46 (concluding a valid
consignment agreement existed considering defendant’s “conduct in partial performance of the
Agreement” was an “unmistakable signal” of the agreement and demonstrated that defendant
“understood a contract to be in effect” and “agree[d] to its terms”).
ii. 	Performance by Plaintiff, Breach by Defendant, and Damages
Plaintiff performed under the Agreement by tendering the Painting to the Defendant for
its sale at Defendant’s art gallery. (See ECF No. 1 at ¶ 1; see ECF No. 13-4, Fitzpatrick Decl. at ¶
12.) Moreover, and as Plaintiff argues, Defendant breached by failing to tender the total amount
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Defendant sold the Painting for ($173,500.00) to Plaintiff in accordance with their Agreement.
(ECF No. 1 at ¶ 9; ECF No. 13-4, Fitzpatrick Decl. at ¶ 12.) Instead, Defendant has only paid
Plaintiff $80,000.00 to date and has failed to remit any additional payment since. (ECF No. 1 at ¶
10; ECF No. 1 at pp. 8-9; ECF No. 13-5 at p. 1.) Consequently, Plaintiff incurred economic loss
from this breach, namely for the remaining $93,500.00 due by Defendant to Plaintiff under the
Agreement. (ECF No. 1 at ¶¶ 15-16; ECF No. 13-4, Fitzpatrick Decl. at ¶ 12.)
Taking these well-pleaded allegations as true, Plaintiff has established Defendant’s
liability for a breach of the consignment agreement. See Lucy v. Lubov Fine Art LLC, No. 24 Civ.
8592 (JHR) (GWG), 2025 WL 3637425, at *3 (S.D.N.Y. Dec. 16, 2025) (concluding plaintiff
established a breach of contract claim where she alleged that she entered into a consignment
agreement with defendants, she performed under the assignment by consigning her painting to
defendants for sale, and “evidently did so, inasmuch as [defendants] sold the painting” but
defendants “did not perform under the consignment agreement” by only remitting some of the
full payment due under the agreement). Accordingly, the undersigned recommends finding that
Defendant is liable to Plaintiff for breach of contract.
c. 	Accounting
Plaintiff maintains that while Defendant admitted to selling the Painting for $173,500.00,
Defendant has not provided any proof that the Painting sold for that amount and, absent such
proof, “the possibility exists that Defendant sold the . . . Painting for a sum in excess of
$173,500.00.” (ECF No. 1 at ¶ 19.) As such, Plaintiff claims to be entitled to “an accounting
demonstrating exactly [the amount] Defendant received for [the] Painting” and an order directing
“Defendant to disgorge any sums he received above the $80,000.00 partial payment that he has
made to Plaintiff.” (Id. at ¶ 20.)
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The elements for a claim for an accounting, which is an equitable remedy, are: “(1)
relations of a mutual and confidential nature; (2) money or property entrusted to the defendant
imposing upon him the burden of accounting; (3) that there is no adequate legal remedy; and in
some cases, a demand for an accounting and a refusal.” Superb Motors Inc. v. Deo, 776 F. Supp.
3d 21, 102 (E.D.N.Y. 2025) (quoting In re Science, Language, and Arts International School,
No. 22-40065-ess, 2024 WL 2036101, at *24 (E.D.N.Y. May 7, 2024). In seeking an accounting
under New York law, a plaintiff must “specifically allege: (a) that a fiduciary relationship existed
between the parties, and (b) that the defendant breached his or her fiduciary duty.” Id. (citing
Soley v. Wasserman, 823 F. Supp. 2d 221, 237 (S.D.N.Y. 2011). “Proof of a fiduciary relationship
is a mandatory element of an accounting claim under New York law.” Faulkner v. Arista Recs.
LLC, 602 F. Supp. 2d 470, 484 (S.D.N.Y. 2009) (citing Rogers v. Roulette Recs., Inc., 677 F.
Supp. 731, 738-39 (S.D.N.Y. 1988)).
Here, Plaintiff fails to allege, nor can the Court ascertain, anything that would give rise to
a “fiduciary duty independent of the contractual agreement that bound the parties.” See
Generation Next Fashions Ltd. v. JP Morgan Chase Bank N.A., 698 F. Supp. 3d 663, 678
(S.D.N.Y. 2023). Absent such an allegation or proof of such fiduciary relationship, the
undersigned recommends dismissing Plaintiff’s claim for accounting. IMG Fragrance Brands,
LLC v. Houbigant, Inc., 679 F. Supp. 2d 395, 411 (S.D.N.Y. 2009) (dismissing the claim for
accounting where the relationship between the parties was “merely contractual, not fiduciary in
nature”); Harris v. TD Ameritrade, Inc., 338 F. Supp. 3d 170, 189 (S.D.N.Y. 2018) (collecting
cases dismissing claims for accounting in the absence of any allegation ass to the existence of a
confidential or fiduciary relationship between the parties).
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d. 	Fraud
Plaintiff asserts that “Defendant has defrauded the Plaintiff . . . .” (ECF No. 1 at ¶ 27.) To
bolster this statement, Plaintiff maintains that Defendant represented to Plaintiff that upon sale of
the Painting, Defendant would “promptly remit payment of the proceeds to Plaintiff.” (Id. at ¶
23.) Indeed, Plaintiff argues that the “prompt payment of the sale proceeds was a critical element
of the consignment agreement, and without such representation, Plaintiff would not have
arranged for the delivery of the [] Painting to Defendant.” (Id. at ¶ 24.) According to Plaintiff, at
the time the Agreement was solicited and made, Defendant “was aware that because of his own
precarious financial situation, he would not be able to remit the full amount of proceeds to
Plaintiff, and he intended to use a portion of the sale proceeds to satisfy his own obligations.”
(Id. at ¶ 25.) Following the sale of the Painting, Plaintiff avers Defendant “made numerous
excuses and false statements to avoid making the payment of the full proceeds.” (Id. at ¶ 26.)
“It is black letter law in New York that a claim for common law fraud will not lie if the
claim is duplicative of a claim for breach of contract.” Aviation Hagglers International DWC-
LLC v. UTD. Aviation Solutions LLC, No. 24-cv-06610-RPK-JMW, 2025 WL 3451979, at *11
(E.D.N.Y. Nov. 12, 2025) (quoting Sekisui Am. Corp. v. Hart, No. 12-cv 3479 (SAS), 2012 WL
5039682, at *3 (S.D.N.Y. Oct. 17, 2012)). A plaintiff must distinguish the fraud claim from a
breach of contract claim by “(1) demonstrating a legal duty separate from the duty to perform
under the contract, (2) demonstrating a fraudulent misrepresentation collateral or extraneous to
the contract, or (3) seeking special damages caused by the misrepresentation and unrecoverable
as contract damages.” Id. (citation omitted); see also Poplar Lane Farm LLC v. The Fathers of
Our Lady of Mercy, 449 F. App'x 57, 59 (2d Cir. 2011) (“Under New York law, when a valid
agreement governs the subject matter of a dispute between parties, claims arising from that
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dispute are contractual; attempts to repackage them as sounding in fraud ... are generally
precluded, unless based on a duty independent of the contract”); Taizhou Zhongneng Imp. & Exp.
Co., Ltd. v. Koutsobinas, 509 F. App’x 54, 57 (2d Cir. 2013) (dismissing plaintiff's fraud claim
when “fraud allegations are nothing more than a restatement of its breach of contract claim”).
Here, Plaintiff’s allegations center around Defendant’s fraudulent misrepresentations
connected to Defendant’s performance under Agreement, specifically Defendant’s failure to
“promptly repay” the sale proceeds to Plaintiff as agreed upon which, as this Court has held
before, warrants dismissal of the fraud claim as duplicative of the breach of contract. See 6340
NB LLC v. Capital One, N.A., No. 20-cv-02500 (OEM) (JMW), 2024 WL 3694262, at *12
(E.D.N.Y. Mar. 11, 2024), report and recommendation adopted, 2024 WL 4100184 (E.D.N.Y.
Sep. 5, 2024). Plaintiff fails to identify a duty that Defendant owed to Plaintiff independent of the
Agreement that would form the basis of the fraudulent conduct she cites to. Accordingly, should
the District Judge find the existence of a valid contract claim, the Court recommends dismissing
Plaintiff’s fraud claim as duplicative.
Should the District Judge disagree and find that no valid breach of contract claim exists,
Plaintiff’s fraud claim would still fail. Common law fraud in New York requires a plaintiff to
allege “(1) a misrepresentation or a material omission of a material fact which was false and
known by [the] defendant to be false, (2) made for the purpose of inducing the plaintiff to rely on
it, and (3) justifiably relied upon by the plaintiff, (4) who suffered an injury as a result of such
reliance. DM Manager LLC v. Fid. Nat’l Info. Servs., Inc., No. 24-1217, 2025 WL 863338, at *2
(2d Cir. Mar. 19, 2025) (quoting City of New York v. Smokes-Spirits.com, Inc., 541 F.3d 425, 454
(2d Cir. 2008)).
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Allegations of fraud must comply with Rule 9(b)’s heightened pleading requirements. See
VR Glob. Partners, L.P. v. Petroleos de Venezuela, S.A., No. 24-1176-CV, 2024 WL 4891271, at
*3 (2d Cir. Nov. 26, 2024) (citing Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797
F.3d 160, 170-71 (2d Cir. 2015)). To comply with Rule 9(b), a plaintiff must “(1) specify the
statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where
and when the statements were made, and (4) explain why the statements were fraudulent.” DM
Manager, 2025 WL 863338, at *2 (quoting Lerner v. Fleet Bank, N.A., 459 F.3d 273, 290 (2d
Cir. 2006)). Additionally, the Second Circuit requires a plaintiff to “plead the factual basis which
gives rise to a strong inference of fraudulent intent.” United States v. Strock, 982 F.3d 51, 66 (2d
Cir. 2020) (quoting O’Brien v. Nat’l Prop. Analysts Partners, 936 F.2d 674, 676 (2d Cir. 1991)).
A “strong inference” of fraud “may be established either (a) by alleging facts to show that
defendants had both motive and opportunity to commit fraud, or (b) by alleging facts that
constitute strong circumstantial evidence of conscious misbehavior or recklessness.” Id. (quoting
Lerner, 459 F.3d at 290-91).
Here, Plaintiff offers nothing more than threadbare conclusory statements as to each
element of fraud which is wholly insufficient to satisfy Rule 9(b)’s requirements. See Reserve
Solutions Inc. v. Vernaglia, 438 F. Supp. 2d 280, 286 (S.D.N.Y. 2006) (noting “conclusory
allegations of fraud will be dismissed under Rule 9(b)”). For example, Plaintiff contends not only
that Defendant made excuses as to why he could not pay, but that Defendant knew prior to the
transaction that he would not be able to pay Plaintiff the full sum. (ECF No. 1 at ¶¶ 24-26.)
Nothing more is offered to support how Defendant knew the statements were made falsely, why
the statements by Defendant were made fraudulently or with an intent to deceive, or even what
gave Plaintiff the impression that Defendant made misrepresentations to resolve his own
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financial issues. Without more, the undersigned recommends dismissing Plaintiff’s fraud claim.
See Zou v. Han, 797 F. Supp. 3d 199, 220 (E.D.N.Y. 2025) (adopting the Report and
Recommendation recommending plaintiffs fraud claim be dismissed where they failed to
“establish that [defendant] knew he was acting improperly, that he acted with a fraudulent intent,
or how these actions actually induced Plaintiffs to rely on the misrepresentations to their
detriment”).
e. 	Deceptive Trade Practices Under N.Y. GBL § 349
Plaintiff alleges that Defendant’s solicitation of the consignment made by representing
that he would promptly remit the sale proceeds, Defendant’s failure to timely remit the proceeds,
and Defendant’s false statements made therewith all constitute “deceptive trade practices” under
GBL § 349. (ECF No. 1 at ¶ 29.) Plaintiff also maintains that Defendant’s “under-reporting of the
sale proceeds” also constitutes deceptive trade practices. (Id. at ¶ 30.)
New York GBL § 349 prohibits “[d]eceptive acts or practices in the conduct of any
business, trade or commerce or in the furnishing of any service in this state.”
WorldHomeCenter.com, Inc. v. PLC Lighting, Inc., 851 F. Supp. 2d 494, 498 (S.D.N.Y. 2011)
(citing N.Y. Gen. Bus. Law § 349(a)). To state a claim under this statute, a plaintiff “must allege
that ‘(1) the act or practice was consumer-oriented; (2) the act or practice was misleading in a
material respect; and (3) the plaintiff was injured as a result.” Id. (citing Spagnola v. Chubb
Corp., 574 F.3d 64, 74 (2d Cir. 2009).
“As a threshold matter, a party must plead “consumer-oriented” conduct to claim the
benefit of Section 349.” Id. (citing Oswego Laborers' Local 214 Pension Fund v. Marine
Midland Bank N.A., 647 N.E.2d 741 (N.Y. 1995)). “The consumer-oriented requirement may be
satisfied by showing that the conduct at issue potentially affects similarly situated consumers.”
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Wilson v. Northwestern Mutual Ins. Co., 625 F.3d 54, 64 (2d Cir. 2010). “Although consumer-
oriented conduct does not require a repetition or pattern of deceptive conduct, a plaintiff must
demonstrate that the acts or practices have a broader impact on consumers at large.” Id. As such,
“New York courts have recognized that ‘private contract disputes’ between the parties do not ‘fall
within the ambit of the statute.’” WorldHomeCenter.com, 851 F. Supp. 2d at 498 (citing Oswego
Laborers Local 214 Pension Fund, 647 N.E.2d at 744); Genesco Entertainment, a Div. of Lymutt
Industries, Inc. v. Koch, 593 F. Supp. 743, 752 (S.D.N.Y. 1984) (finding “single shot”
transactions involving complex, particular arrangements to be those falling “clearly . . . outside
the purview of section 349”).
Here, outside of Plaintiff’s two allegations that Defendant’s actions amounted to
“deceptive trade practices,” Plaintiff neglects to address how Defendant’s conduct affected others
“similarly situated.” Rabadi v. City of Yonkers, No. 21 CV 1258 (VB), 2022 WL 889734, at *10
(S.D.N.Y. Mar. 25, 2022) (collecting cases dismissing GBL § 349 claims where plaintiffs failed
to allege how the single cited incident affected a wide range of customers). Plaintiff’s allegations
as to deceptive trade practices, in fact, relate solely to the private contractual dispute between the
parties to the Agreement, thus failing to prove the “consumer oriented” prong under GBL § 349.
See Alexanian v. Government Employees Ins. Co., No. 21-CV-05427 (LDH) (TAM), 2022 WL
4648454, at *5 (E.D.N.Y. Oct. 1, 2022) (dismissing the GBL § 349 claim because plaintiff’s
allegations “establish[ed] nothing more than a private dispute between parties” and failed to
“suggest Defendants’ conduct was directed at anybody other than [Plaintiff]”). Accordingly, the
Court recommends dismissal of Plaintiff’s claim for deceptive trade practices under New York
GBL § 349.
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V. 	Damages
Once liability for default is established, the next inquiry. A party’s default constitutes a
concession of all well-pleaded allegations, however such default “is not considered an admission
of damages.” Cement & Concrete Workers Dist. Council Welfare Fund v. Metro Found.
Contractors Inc., 699 F.3d 230, 234 (2d Cir. 2012).
In Plaintiff’s Complaint, she requested damages in the form of money owed under the
Agreement, treble damages, attorney’s fees, and disgorgement of the full price plus interest.
(ECF No. 1 at p. 6.) However, Plaintiff has since retracted this requested relief in her renewed
motion for default judgment:
Upon further review and research, Your Declarant believes that treble damages
under NYS General Obligations Law §349 is not applicable nor appropriate under
the instant circumstances. Counsel has discussed same with Plaintiff, who agreed
to seek default without a request of treble damages.
Further, Your Declarant reviewed the amount of work performed herein, which is
far less than contemplated. Additionally, Plaintiff is most concerned with
proceeding in the most expeditious manner possible against a Defendant whom
she believes is attempting to evade the case, rather than litigate properly. As a
result, Plaintiff is not seeking legal fees as an additional relief herein.
(ECF No. 13, Goldsmith Decl. at ¶¶ 12-13.)
Consequently, Plaintiff is only “seek[ing] the amount due and owing under her agreement
with Defendant.” (Id. at ¶ 13.)
a. 	The Remittance of $93,500.00
“Under New York law, it is a ‘fundamental principle’ that an award of damages for breach
of contract ‘should put the plaintiff in the same economic position he would have been in had the
defendant fulfilled the contract.’” Bhungalia Family, LLC v. Agarwal, 317 F. Supp. 3d 727, 736
(S.D.N.Y. 2018) (quoting Lucente v. Int'l Bus. Machines Corp., 310 F.3d 243, 262 (2d Cir. 2002))
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(citation omitted). Indeed, “[i]t has long been established in New York that a breaching party is
liable for all direct and proximate damages which result from the breach.” Tractebel Energy
Mktg., Inc. v. AEP Power Mktg., Inc., 487 F.3d 89, 110 (2d Cir. 2007) (citing Wakeman v.
Wheeler & Wilson Mfg. Co., 4 N.E. 264, 266 (N.Y. 1886)). “[T]hose damages that are the natural
and probable consequence of the breach” are considered “general damages.” Mohegan Lake
Motors, Inc. v. Maoli, 559 F. Supp. 3d 323, 346 (S.D.N.Y. 2021) (quoting Biotronik A.G. v.
Conor Medsystems Ireland, Ltd., 11 N.E.3d 676, 680 (N.Y. 2014)); Powers v. Stanley Black &
Decker, Inc., 137 F. Supp. 3d 358, 386 (S.D.N.Y. 2015) (internal marks omitted) (citations
omitted).
“The Second Circuit explains that ‘[a] plaintiff is seeking general damages when he tries
to recover the value of the very performance promised . . . .’” Aristocrat Leisure Ltd. v. Deutsche
Bank Trust Co. Americas, 618 F. Supp. 2d 280, 292 (S.D.N.Y. 2009) (quoting Schonfeld v.
Hilliard, 218 F.3d 164, 175-176 (2d Cir. 2000)) (alteration in original). It follows, therefore, that
general damages are measured “by what it would take to put the non-breaching party in the same
position that it would be in had the breaching party performed as promised under the contract.”
Bell Semiconductor, LLC v. Broadcom Corp., No. 24-cv-156 (ER), 2024 WL 5118494, at *8
(S.D.N.Y. Dec. 16, 2024) (quoting Latham Land I LLC v. TGI Friday’s, Inc., 948 N.Y.S.2d 147,
151-52 (App. Div. 3d Dep’t 2012)). “To prove general damages under New York law, the
plaintiff must show (1) the fact or existence of damages to a ‘reasonable certainty’ and, if the fact
or existence of damages is proven, (2) ‘a “stable foundation for a reasonable estimate” [of
damages] incurred as a result of the breach.’” Holland Loader Co. v. FLSmidth A/S, 769 F. App’x
40, 42 (2d Cir. 2019) (quoting Tractebel Energy Mktg., Inc., 487 F.3d at 109).
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Plaintiff seeks remittance from Defendant for $93,500.00—the difference between the
price agreed upon for the sale of Painting under the Agreement and reflected in the Sale
Statement ($173,500.00) and the amount the Defendant has paid to Plaintiff thus far
($80,000.00). (See ECF No. 1 ¶¶ 13-16; see also ECF No. 13, Goldsmith Decl. at ¶¶ 10.) To
date, Defendant has yet to remit the remainder of the sale price proceeds which the parties agreed
to. (ECF No. 1 at ¶¶ 13.) Accordingly, Plaintiff is entitled to a remittance of the remainder of the
Painting’s sale price, $93,500.00, to ensure that Plaintiff is put in the same economic position she
would have been had Defendant fully performed on the terms of the Agreement.
b. 	Pre-Judgment and Post-Judgment Interest
Though Plaintiff does not include a demand for pre-judgment interest, under New York
law a “plaintiff who prevails on a claim for breach of contract is entitled to prejudgment interest
as a matter of right.” K2M Design, Inc. v. Schmidt, No. 22 Civ. 3069 (MKV) (GS), 2023 WL
10674525, at *9 (S.D.N.Y. Nov. 30, 2023), report and recommendation adopted, 2024 WL
1208910 (S.D.N.Y. Mar. 21, 2024) (quoting U.S. Naval Inst. v. Charter Comm'ns, Inc., 936 F.2d
692, 698 (2d Cir. 1991)). In fact, the very language of N.Y. C.P.L.R. § 5001(a) states that
prejudgment interest “shall be recovered upon a sum awarded because of a breach of
performance of a contract.” (emphasis added). “Section 5001 imposes an affirmative mandate on
trial courts; they have no discretion not to award prejudgment interest under New York law.”
Gussack Realty Co. v. Xerox Corp., 224 F.3d 85, 93 (2d Cir. 2000); see also Katzman v. Helen of
Troy Tex. Corp., No. 12 Civ. 4220 (PAE), 2013 WL 1496952, at *2 (S.D.N.Y. Apr. 11, 2013) (“A
long line of case law has held that prejudgment interest is mandatory” in breach of contract cases
under New York law).
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Indeed, “courts have awarded prejudgment interest in breach of contract cases even
where plaintiff did not seek such relief in its complaint or at any point up through trial.” Schmidt,
2023 WL 10674525, at *9 (awarding prejudgment interest on a motion for default judgment
finding defendant in breach of the contract despite no demand for prejudgment interest being
made); Eastern Regional Medical Center, Inc. v. Battey, No. 13 CV 7594 (VB), 2015 WL
1909851, at *4 (S.D.N.Y. Apr. 27, 2015) (adopting Report and Recommendation granting
plaintiff’s motion for default judgment on the breach of contract claim and awarding
prejudgment interest “[a]lthough plaintiffs [did] not explicitly request prejudgment interest” in
their papers). Accordingly, the Court finds that an award of prejudgment interest is required even
though Plaintiff’s motion papers did not specifically seek such an award.
Under New York law, “[i]nterest shall be recovered upon a sum awarded because of a
breach of performance of a contract,” NY CPLR § 5001(a) (McKinney), “up until and
including the date of judgment, at nine percent per annum.” Harleysville Worcester Ins. Co. v.
Wesco Ins. Co., Inc., 314 F. Supp. 3d 534, 552 (S.D.N.Y. 2018), aff’d sub nom., Harleysville
Worcester Ins. Co. v. Wesco Ins. Co., 752 F. App’x 90 (2d Cir. 2019) (citing N.Y. C.P.L.R. §
5004); HTV Industries, Inc. v. Agarwal, 317 F. Supp. 3d 707, 717 (S.D.N.Y. 2018). In New
York, a claim for breach of contract accrues upon breach. See Guilbert v. Gardner, 480 F.3d
140, 149 (2d Cir. 2007). Therefore, “[t]he court should calculate pre-judgment interest ‘from
the earliest ascertainable date the cause of action existed . . . to the date the verdict was
rendered or the report or decision was made.’” Prime Contractors Inc. v. APS Contractors Inc.,
786 F. Supp. 3d 524, 555 (E.D.N.Y. 2025) (adopting report and recommendation) (quoting
N.Y. C.P.L.R. §§ 5001(b)–(c), 5004).
According to the Complaint, Defendant sold the Painting on December 7, 2024 for
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$173,500.00 and has failed to remit the entire sum of the sale to Plaintiff. (ECF No. 1 at ¶ 13.)
December 8, 2024—the day after Defendant was to remit payment under the Agreement—
therefore serves as the earliest ascertainable date of breach giving rise to Plaintiff’s cause of
action for breach of contract. As such, December 8, 2024, is “a reasonable date to begin
calculating pre-judgment interest for Plaintiff’s breach of contract claim . . . .” Prime
Contractors Inc. v. APS Contractors Inc., 786 F. Supp. 3d 524, 555 (E.D.N.Y. 2025) (adopting
report and recommendation) (finding the appropriate date to begin calculating pre-judgment
interest was March 21, 2019 because allegations in the complaint indicated defendant “failed,
and continue[d] to fail, to pay” plaintiff from March 21, 2019 to present). Accordingly,
Plaintiff should be awarded pre-judgment interest on the $93,500.00 calculated at 9% per
annum from December 8, 2024 to date Judgment is entered.
Although Plaintiff does not request post-judgment interest, the award of post-judgment
interest is mandatory pursuant to 28 U.S.C. § 1961(a), which applies to “any money judgment
in a civil case recovered in a district court.” “The very language of 28 U.S.C. § 1961 ensures
that an award of post-judgment interest is mandatory in any civil case where money damages
are recovered.” Duffy v. Oyster Bay Indus., Inc., No. 10-CV-3205 (ADS) (ETB), 2011 WL
2259798, at *3 (E.D.N.Y. Mar. 29, 2011), report and recommendation adopted, 2011 WL
2259749 (E.D.N.Y. June 2, 2011). Having found Plaintiff established liability for breach of
contract and would be entitled to damages in the form of $93,500.00, and pre-judgment interest
at 9% per annum on that amount, the undersigned respectfully recommends a finding that
Plaintiff be entitled to post-judgment interest from the date the Clerk of Court enters judgment
until the date of payment at the statutory rate set forth in 28 U.S.C. § 1961.
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CONCLUSION
Accordingly, for the reasons set forth above, the Court respectfully recommends that
Plaintiff’s motion for default judgment (ECF No. 13) be GRANTED and the Court enter
judgment against Defendant Mark Borghi in the total amount of $93,500.00, plus pre-judgment
interest at 9% per annum on the $93,500.00 from December 8, 2024 to date of entry of
Judgment, and post-judgment interest at the statutory rate set forth in 28 U.S.C. § 1961 from the
date the Clerk of Court enters judgment until the date of payment.
OBJECTIONS
A copy of this Report and Recommendation is being electronically served through ECF
on all counsel. Counsel for Plaintiff is directed to serve copies of this Report and
Recommendation upon Defendant on or before March 9, 2026, and file proof of service of the
same ECF. Any written objections to this Report and Recommendation must be filed within
fourteen (14) days of service of this Report. 28 U.S.C. § 636(b)(1) (2006 & Supp. 2011); Fed. R.
Civ. P. 6(a), 72(b); see also Nambiar v. The Central Orthopedic Group LLP, No. 24-1103 (2d Cir.
Oct. 28, 2025) (addressing timing and scope of objections to Reports and Recommendations) .
Any requests for an extension of time for filing objections must be directed to the District Judge
assigned to this action prior to the expiration of the fourteen (14) day period for filing objections.
Failure to file objections within fourteen (14) days precludes further review of this Report and
Recommendation either by the District Court or the Court of Appeals. Thomas v. Arn, 474 U.S.
140, 145 (1985) (“a party shall file objections with the district court or else waive right to
appeal”); Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008) (“failure to object timely
to a magistrate's report operates as a waiver of any further judicial review of the magistrate’s
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decision”); see Monroe v. Hyundai of Manhattan & Westchester, 372 F. App’x 147, 147–48 (2d
Cir. 2010) (summary order) (same).
Dated: Central Islip, New York.
March 5, 2026
RESPECTFULLY RECOMMENDED,
/S/ James M. Wicks
JAMES M. WICKS
United States Magistrate Judge
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