Opinion
5:00-CV-514
August 13, 2001
HOLLAND KNIGHT LLP, JOHN J. REILLY, ESQ., of counsel, CRISTINA M. BRENNAN, ESQ. of counsel, 195 Broadway, New York, New York 10007, Attorneys for Plaintiff.
BYRNE, COSTELLO PICKARD, P.C., TERRY R. PICKARD, ESQ., of counsel, MONY Tower I, Suite 800, 100 Madison Street, Syracuse, New York 13202, Attorneys for Peregrine Health Management Company, duly appointed Receiver of Lakeside Nursing Home, Inc., pursuant to § 2810 of the Public Health Law of the State of New York.
GREEN SEIFTER, C.P.A.S, P.C., LEE ALCOTT, ESQ., of counsel, One Lincoln Center, 100 West Fayette Street, Syracuse, New York 13202, Attorneys for Lakeside Nursing Home, Inc.
MEMORANDUM-DECISION AND ORDER
On May 4, 2001, this Court issued a Memorandum-Decision and Order which, inter alia, granted plaintiff's motion for summary judgment on its initial complaint against defendant Lakeside Nursing Home, Inc. ("Lakeside") in the amount of $339,415.60 plus interest from July 7, 2000. Plaintiff has requested that this Court direct entry of a final judgment as to that claim pursuant to Fed.R.Civ.P. 54(b). Rule 54(b) provides in part:
(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. ***
As the Second Circuit has explained:
In a situation . . . where liability is established on multiple claims, Rule 54(b) authorizes the district court to determine the damages stemming from some of the claims and to enter final judgments with respect to them, while retaining jurisdiction over the other claims in which damages have not yet been proven. Such a procedure is not required in multi-claim suits, but it is permitted if the district court makes the proper certification. Fed.R.Civ.P. 54(b); see also Wright Miller, Federal Practice and Procedure: Civil, §§ 2653, 2654.
[United States v. Burnett, 262 F.2d 55 (9th Cir. 1959), and Aetna Casualty Surety Co. v. Giesow, 412 F.2d 468 (2d Cir. 1969)] establish that, for a final judgment to be entered on any one claim, all damages stemming from that claim must be fixed. Rule 54(b) establishes that final judgments may, at the court's discretion, be entered for some claims while the court retains jurisdiction over the others. However, for a claim to be the subject of a final judgment and certification under Rule 54(b), the requirements of Burnett and Giesow must be met with respect to that particular claim. In other words, the district court may utilize its Rule 54(b) powers with respect to a given claim only if all damages stemming from that claim have been fixed.
International Controls Corp. v. Vesco, 535 F.2d 742, 748 (2d Cir. 1976). In a letter dated June 28, 2001, this Court stated:
The action at bar sets forth two distinct claims for relief arising from the contractual arrangements between the parties: the claim for monies due for food services as stated in the initial complaint and the claim for monies due for taxes owed as stated in the supplemental complaint. Thus, it appears that final judgment for the monies due for food services as stated in the initial complaint may be appropriate under Rule 54(b) provided that there is no possibility that Sodexho may seek additional damages on this claim. Because it appears from the initial complaint that an additional $4,133.18 may be in dispute, the record does not clearly establish whether all damages stemming from the claim in the initial complaint have been fixed.
Accordingly, the Court declined to direct entry of judgment under Rule 54(b).
By letter dated July 11, 2001, plaintiff responded:
[W]e write to confirm that Sodexho Marriott will not be seeking additional damages on its claim for food services. The sum of $4,133.18 referred to in your Honor's letter is included in the amount sought in Sodexho Marriott's complaint and in the amount awarded by your Honor in the May 4, 2001 Order. Although Lakeside Nursing Home ("Lakeside") questioned the validity of two invoices totaling $4,133.18 during its meetings with Sodexho Marriott representatives in June 1999, they have since dropped those objections and indeed did not oppose the summary judgment motion. As a result, there is no amount still in dispute, and the damages stemming from this claim therefore have been fixed.
Neither Lakeside nor its receiver, Peregrine Health Management Company ("Peregrine"), dispute the facts asserted by plaintiff. Nor do they assert any reason why judgment should be delayed. Rather, Peregrine requests that "any judgment entered pursuant to the Order specifically recite that the plaintiff may proceed with respect to the enforcement of its judgment only against assets not vested in the Receiver." In other words, Peregrine asks the Court to limit plaintiff's enforcement options.
Obviously, plaintiff is entitled to utilize only those enforcement procedures which are authorized by law, and defendants have legal recourse if plaintiff proceeds improperly. Peregrine's concern that plaintiff's enforcement activities may adversely affect Peregrine's ability to provide future services for residents of the nursing home is not, however, a legitimate basis to deny plaintiff the use of one or more of the legally available means to enforce its judgment. Indeed, a judgment creditor's enforcement activities often adversely affect the judgment debtor. The Court finds that defendants have failed to advance a just reason for delay in directing the entry of judgment upon the order of summary judgment for that amount. Nor, after thorough review of the record, does the Court perceive a just reason for delay.
Plaintiff's unchallenged letter of July 11, 2001, confirms that all damages stemming from the claim in the initial complaint have been fixed. Plaintiff has obtained summary judgment on this claim and is entitled to no further recovery thereon. The claim in the supplemental complaint is entirely distinct and does not stem from the claim in the initial complaint. Thus, based on its determinations that all damages stemming from the claim in the initial complaint for monies due for food services have been fixed and that there is no just reason for delay, the Court in its discretion directs entry of final judgment under Rule 54(b) on the May 4, 2001, order granting summary judgment for the monies due for food services as stated in the initial complaint.
It is therefore
ORDERED that judgment be entered on the May 4, 2001, order granting summary judgment in favor of Sodexho Marriott Services, Inc. (sole member of Sodexho Operations, Inc., successor by name change only to Sodexho USA, Inc.) against defendant Lakeside Nursing Home, Inc. ("Lakeside") in the amount of $339,415.60 plus interest from July 7, 2000; and it is further
ORDERED that plaintiff submit to the Court and opposing counsel a proposed judgment in accordance herewith.
IT IS SO ORDERED.