Opinion
19 Civ. 1395 (VB) (PED)
08-16-2019
THE BACK NINE INDOOR GOLF LTD, and T & T VIRTUAL GOLF LLC, Plaintiffs, v. INFINITY GOLF & SPORTS SIMULATORS LLC; MARTY RASMUSSEN, INDIVIDUALLY, and as a MEMBER OF INFINITY GOLF & SPORTS SIMULATORS LLC; NADINE KELLEY, INDIVIDUALLY, and as an AUTHORIZED PERSON OF INFINITY GOLF & SPORTS SIMULATORS LLC, Defendants.
REPORT AND RECOMMENDATION
TO: THE HONORABLE VINCENT L. BRICCETTI, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
On February 14, 2019, Plaintiffs The Back Nine Indoor Golf LTD and T & T Virtual Golf LLC ("Plaintiffs") commenced this action against Defendants Infinity Golf & Sports Simulators LLC ("Infinity Golf"), Marty Rasmussen, individually and as a member of Infinity Golf, and Nadine Kelley, individually and as an authorized person of Infinity Golf (collectively, "Defendants"), seeking damages for Defendants' breach of contract and unjust enrichment. Dkt. 10. Defendants did not answer. On April 2, 2019, Plaintiffs filed Proposed Clerk's Certificates of Default, Dkts. 26, 27, 28, and, on February 3, 2019, the Clerk entered Certificates of Default, Dkts. 30, 31, 32. On April 24, 2019, the Court ordered Defendants to show cause why a default judgment should not be entered. Dkt. 38. On May 30, 2019, the Court held a Show Cause Hearing, at which Defendants did not appear, see 5/30/2019 Minute Entry, and referred the matter to me to conduct an inquest, Dkt. 40.
Presently before me are Plaintiffs' proposed findings of fact and conclusions of law and accompanying exhibits. Dkt. 43. Defendants did not respond to this submission. Plaintiffs seek $117,545.00 from Defendants in damages, including attorneys' fees and costs, plus pre- and post-judgment interest.
Having completed the inquest, and for the reasons set forth below, I respectfully recommend that the Court enter judgment against Defendant Infinity Golf, in the total amount of $61,284.00, together with pre-judgment interest as calculated below and post-judgment interest.
II. THE INQUEST
On June 4, 2019, I issued a Scheduling Order directing Plaintiffs to file and serve Proposed Findings of Fact and Conclusions of Law by July 8, 2019. Dkt. 41. Defendants were directed to file their response, if any, by July 22, 2019. Id. The Scheduling Order further provided:
The Court hereby notifies the parties that it may conduct this inquest based solely upon the written submissions of the parties. See Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989). To the extent that any party seeks an evidentiary hearing on the issue of damages (or other monetary relief), such party must set forth in its submission the reason why the inquest should not be conducted based upon the written submissions alone, including a description of what witnesses would be called to testify at a hearing and the nature of the evidence that would be submitted.Id.
On July 8, 2019, Plaintiffs filed their proposed findings of fact and conclusions of law, affidavits, and accompanying exhibits. Dkt. 43. Plaintiffs did not request an evidentiary healing. Defendants did not respond.
The following facts are drawn from my review of Plaintiffs' complaint and supported by Plaintiffs' inquest submissions and are deemed established for the purposes of determining Defendants' liability and Plaintiffs' damage award.
On or about October 24, 2018, Plaintiffs allege that they, as merchants engaged in the operation of indoor golf simulator establishments, entered into an oral agreement with Defendants, merchants engaged in the design, manufacture, sale, and installation of commercial golf simulators, in which Defendants agreed to supply four custom designed and manufactured golf simulators for Plaintiffs' new establishment, TNT Virtual Golf, located at the Palisades Center, in West Nyack, New York. Dkt. 43 at 2-3, 6, 7. On or about October 25, 2018, Defendants provided Plaintiffs with an invoice and written quote setting forth the details of the agreement. Dkt. 10-1. Pursuant to these documents, Plaintiff's agreed to pay $40,000.04 for the four simulators. Id. at 3. The Terms of Sale were described as follows:
Plaintiffs acknowledge that the complaint incorrectly stated that the sale was for six simulators; the correct number was four. Dkt. 43 at 3.
Due to the fact that all of our products are custom designed and manufactured, our terms of sale require a deposit equaling 65% of the total invoice on order. On installed products, 20% of the invoice is due on shipment (plus any freight charges) and 15% balance of invoice is due on installation . . . . Current lead times for custom builds is six to eight weeks. Actual delivery dates will be offered upon reception of a signed quote and subsequent deposit.Id. at 5. Plaintiffs paid the initial deposit of $26,000.00 (65% of the total invoice) and signed the quote on or about October 25, 2018. Id. at 3, 5-6. On November 19, 2018, Plaintiffs paid the remainder due in the amount of $14,000.04. Dkt. 10-2 at 4.
Plaintiffs next allege that "Defendants supplied some equipment parts, (parts which are useless without the remaining equipment), with $28,400.00 worth of equipment paid for and still undelivered." Dkt. 43 at 3. Due to Defendants' alleged failure to deliver the remaining equipment, Plaintiffs were forced to purchase "basic golf simulators" from a third-party vendor, at an additional cost of $37,152.00, plus spend an extra $2,400.00 on software "for famous golf courses promised and paid for under the agreement with Defendants, but not delivered." Id.
Additionally, Plaintiffs contend that they lost the money they paid in rent for December 2018 in the amount of $13,000.00, and for "half of January 2019" in the amount of $4,500.00, because they were not able to open their business and generate income due to Defendant's failure to deliver the simulators. Id. Moreover, Plaintiffs claim they lost revenue in excess of $40,000.00. Id.
In their inquest submission, Plaintiffs request $110,895.02 in damages, which includes $57,052.00 incurred in Plaintiffs' second contract with the third-party vendor and $53,843.02 in lost productivity. Dkt. 43 at 10-11. Plaintiff's inquest submission further requests $6,000 in attorneys' fees, $650.00 in costs, and pre- and post-judgment interest. Id.
III. LEGAL STANDARD
It is well settled that, when a defendant defaults, the court must accept all of the plaintiff's allegations as true, except those pertaining to damages. Fed. R. Civ. P. 8(b)(6); see, e.g., Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009). Proof of damages must be based upon admissible, authenticated evidence. House v. Kent Worldwide Machine Works, Inc., 359 Fed. Appx. 206, 207-08 (2d Cir. 2010) (summary order). Plaintiff "bears the burden of establishing her entitlement to recovery and thus must substantiate her claim with evidence to prove the extent of damages." Dunn v. Advanced Credit Recovery Inc., No. 11 Civ. 4023, 2012 U.S. Dist. LEXIS 27205, at *2 (S.D.N.Y. Mar. 1, 2012), adopted by, 2012 U.S. Dist. LEXIS 47129 (S.D.N.Y. Apr. 3, 2012) (citing Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992)).
Plaintiffs are entitled to all reasonable inferences that can be made from the evidence that is presented in support of their damages claims. See, e.g., Au Bon Pain Corp. v. Artect, Inc., et al., 653 F.2d 61, 65 (2d Cir. 1981). However, "the district court cannot simply rely on the Plaintiff's statement of damages; there must be a basis upon which the court may establish damages with reasonable certainty." House, 359 F. App'x at 207 (citing Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997)).
Moreover, "[w]here an inquest is conducted following a default judgment, it is generally necessary for the Court to determine whether the allegations of the complaint, taken as true, are sufficient to establish the defendant's liability." Weiwei Gao v. Sidhu, No. 11 Civ. 2711, 2013 U.S. Dist. LEXIS 83446, at *6-7 (S.D.N.Y. June 12, 2013) (citing PSG Poker, LLC v. DeRosa-Grund, No. 06 Civ. 1104, 2008 U.S. Dist. LEXIS 59214, at *3 (S.D.N.Y. July 14, 2008)).
IV. DISCUSSION
Plaintiffs' complaint asserted claims for breach of contract and unjust enrichment. Plaintiffs only address the breach of contract claim in their inquest submission. Notably, Plaintiffs' complaint also sought a refund of the $40,000.04 they paid Defendants for the four simulators, Dkt. 10 at 7, in addition to the damages discussed above, but Plaintiffs do not seek such a remedy here. Instead, Plaintiffs' seek reimbursement of the money they paid on the contract with the third-party vendor for replacement simulators, including for rent paid during the relevant period, and for "lost productivity" that resulted from Defendants' breach of contract, plus attorneys' fees and costs, and pre- and post-judgment interest, as discussed supra.
For the reasons that follow, I respectfully recommend that the Court award Plaintiffs $61,284.00 in damages.
A. Breach of Contract Claims
"To state a claim for breach of contract under New York law, a plaintiff must allege (1) the existence of an agreement, (2) adequate performance of the contract by the plaintiff, (3) breach of contract by the defendant, and (4) damages." Hudson & Broad, Inc. v. J.C. Penney Corp., 553 Fed. App'x. 37, 38-39 (2d Cir. 2014) (citing Harsco Corp. v. Segui, 91 F.3d 337, 348 (2d Cir. 1996)).
Plaintiffs have alleged (1) the existence of an oral agreement between merchants for the delivery of custom made golf simulators, evidenced by a subsequent writing, (2) adequate performance of the contract by Plaintiffs because they paid the full contract price, (3) the Defendants' breach of the contract when Defendants failed to fully deliver the four golf simulators, and (4) Plaintiffs' damages because of Defendants' failure to perform, failure to issue a refund, the costs incurred by Plaintiffs upon purchasing the simulators from a third-party vendor, and lost productivity.
1. Statute of Frauds
Plaintiffs briefly address the requirements of the Statute of Frauds and argue that "[t]his action falls within the exceptions to the required writings of the Statute of Frauds . . . for Breach of an oral contract for failure to deliver four- custom-made golf simulators, paid for in full, between merchants, for the sale/purchase of custom-made goods costing over $500.00. The contract is evidenced by other writings." Dkt. 43 at 6.
The Statute of Frauds requires that "a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought." N.Y. U.C.C. § 2-201(1). However, the UCC's "merchant's exception" provides:
Between merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) against such party unless written notice of objection to its contents is given within ten days after it is received.Id. § 2-201(2).
Here, accepting all of Plaintiffs' allegations as true, an oral agreement was reached between Plaintiffs and Defendants on or about October 24, 2018, and, on or about October 25, 2018, Defendants sent Plaintiffs an invoice and written quote setting forth the details of the sale, including the quantity and amount of the sale. Dkt. 10-1. The written quote was on Infinity Golf's company letterhead and stated it was sent from Marty Rasmussen, registered agent and member of Infinity Golf. Id. at 4. Plaintiffs subsequently signed the written quote and paid the initial deposit. Dkt. 10-1 at 3, 5-6. Defendants further accepted full payment for the simulators on November 19, 2018. Dkt. 10-2 at 4.
Accordingly, I recommend that Your Honor find that the contract between Plaintiffs and Defendants satisfied the Statute of Frauds, and the first element for a breach of contract claim under New York law. See generally Bazak Int'l Corp. v. Tarrant Apparel Grp., 378 F. Supp. 2d 377, 382 (S.D.N.Y. 2005) (holding that a follow-up E-mail satisfied the "writing in confirmation" requirement, was "sufficient against the sender" due to an attached letter being on company letterhead and containing a typed signature, and "provide[d] a sufficient basis for belief that its message rest[ed] on a real contract" because the E-mail contained the requisite quantity term).
2. The Other Requirements for a Valid Contract are Sufficiently
Well Pleaded
Plaintiff's allegations regarding the alleged breach of contract, Plaintiffs' performance on the contract, and the resulting damages are also sufficiently well pleaded to establish the Defendants' liability on the breach of contract claim.
As a result of the breach, Plaintiffs seek a total of $110,895.02 in damages: (i) $57,052.00 for costs incurred in their second contract with the third-party vendor for replacement simulators; and (ii) $53,843.02 for lost productivity. Dkt. 43 at 10-11.
For the reasons discussed below, I respectfully recommend a damage award of $61,284.00 from the Defendants to reimburse Plaintiffs for the costs they incurred in purchasing simulators from a third-party vendor, for rent paid after the breach and during the period they were unable to open, and for lost productivity.
3. Damages
a. Costs Incurred due to Third-Party Contract
Plaintiffs seek $57,052.00 in damages related to the costs incurred when Plaintiffs were forced to purchase replacement simulators from a third-party vendor. Dkt. 43 at 10. Plaintiffs allege that they were forced to buy the replacement simulators at a cost of $37,152.00, plus an additional $2,400.00 for software containing famous golf courses which would have been provided under the original contract with Defendants. Additionally, Plaintiffs include in this category rent they paid for the months of December 2018 and half of January 2019, allegedly totaling $17,500.00. Id. at 3, 10.
Plaintiffs attached to their complaint the invoice for the replacement simulators and proof of payment in the amount of $37,152.00. Dkt. 10-3. Plaintiffs have provided no proof of payment on, or purchase of, any additional software for famous golf courses.
Plaintiffs' claim for damages in the form of rent paid are both inaccurate and speculative. First, Plaintiffs' principal, Thomas Allen, alleges in his affidavit that Plaintiffs paid $13,000 for December 2018 rent and $4,500 for January 2019 rent, totaling the requested $17,500 in damages. Dkt. 43-2. However, Plaintiffs also attached their agreement with the Palisades Center which lists the monthly fee schedule. Dkt. 43-3. Plaintiffs agreed to pay $12,500 for the month of December and $4,500 for the entire month of January. Plaintiffs, by their own admission, opened their business on January 23, 2019, Dkt. 43-1 at 4, and were only damaged to the extent they paid rent for "half of January 2019," Dkt. 43 at 3. Thus, the total of the rent paid in December 2018 and the prorated share of the rent paid in January 2019 is $15,693.55.
Prorated rent for 22 days in the month of January 2019 comes to $3,193.55. This combined with the $12,500 paid for the month of December amounts to $15,693.55.
However, this total is also speculative. Plaintiffs' agreement with Defendants states that "[c]urrent lead times for custom builds is six to eight weeks. Actual delivery dates will be offered upon reception of a signed quote and subsequent deposit." Dkt. 10-1 at 5. Plaintiffs provided evidence that they signed the quote and paid the initial deposit on or about October 25, 2018. Id. at 3, 5-6. Eight weeks following this date was December 20, 2018. There was no guarantee, by the terms of the contract, that Plaintiffs would have been able to open their establishment on, or prior to, December 20, 2018. Therefore, the most rent that Plaintiffs can claim to have lost for not being able to open in the month of December 2018 is $4,435.48—the prorated rent for 11 days in the month of December. Thus, the total of the damages related to rent paid between December 21, 2018 and January 22, 2019 is $7,629.03.
$4,435.48 from December 21-31, 2018, plus $3,193.55 from January 1-22, 2019.
Accordingly, I recommend that damages related to the costs Plaintiffs incurred by being forced to purchase simulators from a third-party vendor be limited to $37,152.00 for the purchase and $7,629.03 for rent paid, totaling $44,781.03.
b. Lost Productivity
Plaintiffs seek $53,843.02 in damages for "lost productivity," or lost revenue. Dkt. 43 at 11; Dkt. 43-2 at 2-3. Plaintiffs' calculation of lost revenue is similarly speculative. Plaintiffs have provided bank statements demonstrating that between January 22, 2019 and April 8, 2019 their business generated $38,006.65 in revenue, or $500.09 per day. Dkt. 43-6; Dkt, 43-2 at 2. Plaintiffs have extrapolated this value over the period of December 1, 2018 through January 21, 2019 and estimated their losses at $25,504.46. Dkt. 43-2 at 2-3. Plaintiffs do not stop there, however. Plaintiffs note that December rent is 2.8888889 times higher than other months because it is a high traffic month with increased business. Id. at 3. As a result, Plaintiffs speculate that their projected daily revenue for this period should also be calculated as 2.8888889 times higher than a typical month, or $1,444.70 per day. Id. By Plaintiffs' calculations, this brings the total lost revenue for December 2018 and 21 days in January 2019 to $53,843.02. Id.
The Court notes that given Plaintiffs' December 2018 rent was $12,500.00, not $13,000.00, December rent was in fact 2.77777778 times higher than other months.
As discussed supra, there was no guarantee that Plaintiffs would have been able to open on or before December 20, 2018. It is also unclear whether, assuming the simulators were delivered on December 20, 2018, Plaintiffs would have been able to open their business in the month of December at all. Even assuming Plaintiffs were able to open the business on the following day, it is speculative to assume that a new business would immediately begin generating $1,444.70 in revenue per day—nearly three times the amount they have demonstrated earning since opening—for the remainder of the year. Given that there must be some "basis upon which the court may establish damages with reasonable certainty," House, 359 F. App'x at 207, a fairer outcome is derived by calculating Plaintiffs' lost revenue at $500.09 per day from December 21, 2018 through January 22, 2019. Thus, Plaintiffs' lost revenue amounts to $16,502.97.
Accordingly, I respectfully recommend that Plaintiffs be awarded damages in the amount of $44,781.03 for the costs incurred in entering the third-party contract and for rent paid, and $16,502.97 for lost revenue, for a total damages award of $61,284.00.
B. Individual Defendants
Plaintiffs allege that Defendant Marty Rasmussen is liable individually and as a member of Infinity Golf, and Defendant Nadine Kelley is liable individually and as an authorized person of Infinity Golf. It is unclear under what theory Plaintiffs seek to hold these defendants liable. Indeed, Plaintiffs make no specific allegations concerning the individual defendants, other than their status within Infinity Golf. In New York, piercing the corporate veil requires a showing that: "(1) the owners exercised complete domination of the corporation in respect to the transaction attacked; and (2) that such domination was used to commit a fraud or wrong against the plaintiff which resulted in plaintiff's injury." Okapi Partners, LLC v. Holtmeier, No. 18 Civ. 6381 (PKC), 2019 WL 1517553, at *4 (S.D.N.Y. Apr. 8, 2019) (quoting Morris v. New York State Dep't of Taxation & Fin., 82 N.Y.2d 135, 141 (1993)). "Where veil-piercing claims sound in fraud, the plaintiff must satisfy the heightened pleading standard of Rule 9(b), Fed. R. Civ. P.; otherwise, the notice-pleading standard of Rule 8 applies." Id.
Here, Plaintiffs have satisfied neither pleading standard. Plaintiffs have articulated no allegations against the individual defendants concerning either prong of the veil-piercing test. A failure to plead in nonconclusory language facts establishing all the elements requires dismissal of the action. Joan Hansen & Co. v. Everlast World's Boxing Headquarters Corp., 296 A.D.2d 103, 109-110 (App. Div. 1st Dept. 2002) (citations omitted). Although Plaintiffs allege that Defendant Rasmussen was a Registered Agent and member of Infinity Golf and Defendant Kelley was an Authorized Person of Infinity Golf, Plaintiffs have not alleged that the individual defendants exercised complete domination or that they committed a fraud or wrong against Plaintiffs. See Morris, 82 N.Y.2d at 141-42.
Accordingly, I respectfully recommend that no damage award be entered against either Defendant Rasmussen or Defendant Kelley.
C. Attorneys' Fees and Costs
Plaintiffs seek attorneys' fees in the amount of $6,000 and costs totaling $650.00. Dkt. 43 at 11. Plaintiffs have failed to articulate any theory under which this case falls within an exception to the American Rule that "[e]ach litigant pays his own attorney's fees, win or lose, unless a statute or contract provides otherwise." Eagle Trading USA, LLC v. Crownwell, LLC, No. 18 Civ. 7393 (PKC), 2019 WL 1323993, at *2 (S.D.N.Y. Mar. 25, 2019) (quoting Baker Botts L.L.P. v. ASARCO LLC, 135 S. Ct. 2158, 2164 (2015). Plaintiffs have not alleged that an oral agreement was ever reached concerning attorneys' fees and costs, and the written quote setting forth the details of the sale, and signed by Plaintiffs, makes no mention of attorneys' fees and costs. Accordingly, I recommend that Plaintiff's application for attorneys' fees and costs be denied.
D. Pre-Judgment Interest
Plaintiffs seek pre-judgment interest on the damages awarded at 9% from February 14, 2019 through the present. Dkt. 43 at 11. 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 NY CPLR § 5004). When a breach of contract occurs,
[i]nterest shall be computed from the earliest ascertainable date the cause of action existed, except that interest upon damages incurred thereafter shall be computed from the date incurred. Where such damages were incurred at various times, interest shall be computed upon each item from the date it was incurred or upon all of the damages from a single reasonable intermediate date.Id. § 5001(b).
Here, Plaintiffs have not articulated precisely when the breach of contract occurred. As discussed, the breach would have to have occurred at some point after December 20, 2018. Plaintiffs have not alleged whether, as specified in the contract, "[a]ctual delivery dates [were] offered [by Defendants] upon reception of [the] signed quote and subsequent deposit." Dkt. 10-1 at 5. Additionally, Plaintiffs concede that some equipment was delivered, though no date is alleged, and it is not clear whether the breach occurred due to the insufficient delivery or the failure to later deliver the remaining equipment. However, the damages occurred when Plaintiffs were forced to pay rent for the end of December 2018 through January 22 while not generating revenue, when they lost revenue during this time period, and when they purchased the replacement simulators on or about January 8, 2019. I conclude that the earliest ascertainable date the cause of action existed was on or about December 21, 2018. Although it is not clear why Plaintiffs request a later starting date, the proposed date does not run afoul of the statutory requirements. Therefore, I will accept Plaintiff's date of February 14, 2019 as the date from which to begin calculating pre-judgment interest.
Plaintiff's breach of contract damages are accruing interest at the rate of $15.11 per day. Calculating the interest from February 14, 2019 to date (August 16, 2019), the total interest accrued thus far is $2,765.13.
Plaintiffs' damages for breach of contract amount to $61,284.00. The yearly interest, at the rate of 9%, is $5,515.56. When divided by 365, the per diem interest amounts to $15.11.
183 days.
Accordingly, I respectfully recommend that plaintiff be awarded pre-judgment interest in the amount of $2,765.13, with additional interest to be calculated through the date of judgment at a rate of $15.11 per day.
E. Post-Judgment Interest
Finally, Plaintiffs seek post-judgment interest from the date of judgment until the judgment is paid by Defendants. Dkt. 43 at 11. Post-judgment interest "shall be allowed on any money judgment in a civil case recovered in a district court . . . 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). Post-judgment interest "is mandatory under federal law." Bleecker v. Zetian Sys., Inc., No. 12 Civ. 2151 (DLC), 2013 WL 5951162, at *2 (S.D.N.Y. Nov. 1, 2013) (citing Weslinghouse Credit Corp. v. D'Urso, 371 F.3d 96, 100 (2d Cir.2004)).
Accordingly, Plaintiffs are entitled to post-judgment interest pursuant to 28 U.S.C. § 1961(a).
V. CONCLUSION
For the foregoing reasons, I recommend that Plaintiff be awarded damages against Defendant Infinity Golf in the total amount of $61,284.00; accrued pre-judgment interest of $2,765.13, plus per diem interest of $15.11 until judgment is entered; and post-judgment interest.
Plaintiffs' counsel is directed to serve a copy of this Report and Recommendation on Defendants and file proof of service promptly. Dated: August 16, 2019
White Plains, New York
Respectfully submitted,
/s/ _________
PAUL E. DAVISON
UNITED STATES MAGISTRATE JUDGE
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1), as amended, and Fed. R. Civ. P. 72(b), the parties shall have fourteen (14) days pursuant to Fed. R. Civ. P. 6(d), from the date hereof to file written objections to this Report and Recommendation. Fed. R. Civ. P. 6(a). Such objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of The Honorable Vincent L. Briccetti, United States District Judge, at the Hon. Charles L. Brieant Jr. Federal Building and United States Courthouse, 300 Quarropas St., White Plains, NY 10601-4150, and to the chambers of the undersigned at the same address.
Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered.
Requests for extensions of time to file objections must be made to Judge Briccetti.