ORDER ADOPTING REPORT AND RECOMMENDATION
Dena Lenard (“Plaintiff’) brought claims for breach of contract, negligence, fraud, deceptive trade practices, and conversion of property against Design Studio Inc. and Rose C. Christo (“Defendants”). Defendants failed to respond to the Complaint, and Judge Richard J. Holwell. to whom this case was previously assigned, entered a default judgment against Defendants on November 17, 2009, for an amount that was to be determined by an inquest.
Magistrate Judge Debra Freeman issued a Report and Recommendation (“R & R”) on June 21, 2012, in which she recommended that no damages be awarded to Plaintiff because Plaintiffs submissions were inadequate to support her damages claims. Magistrate Judge Freeman further recommended that the Court vacate the default judgment that had been entered with respect to the negligence, fraud, deceptive trade practices, and conversion of property claims because these claims were inadequately pleadеd. She also recommended granting leave to replead the claim for conversion of property. No party has filed any objections to the R & R and the time for filing such objections has passed.
This Court “may accept, reject, or modify, in whole or in part, the findings or recommendations” of a magistrate judge. The Court reviews de novo those parts of the R & R to which objections are made and reviews the remainder for clear error. 28 U.S.C. § 636(b)(1); see also Fed.R.Civ.P. 72.
After reviewing Magistrate Judge Freeman’s thorough and thoughtful R & R, to which no objections were filed, this Court concludes that there is no clear error and, accordingly, adopts the R & R in its entirety. For the reasons set forth in the R & R, it is hereby
ORDERED that no damages are awarded to Plaintiff as a result of Defendants’ breach of contract; and it is further
ORDERED that the default judgment entered against Defendants with respect to the claims for negligence, fraud, deceptive trade practices, and conversion of property is hereby-vacated; and it is further
ORDERED that Plaintiffs claim for conversion of property is hereby dismissed without prejudice. Plaintiff is granted leave to file an amended complaint only with respect to the claim for conversion of property. Any such amended complaint shall be filed no later than September 24, 2012. If Plaintiff does not file an amended complaint on or before September 24, 2012, this claim will also be dismissed with prejudice.
SO ORDERED.
REPORT AND RECOMMENDATION
TO THE HONORABLE J. PAUL OETKEN, U.S.D.J.:
This matter is before this Court for a damages inquest on a default judgment entered in favor of plaintiff Dena Lenard (“Plaintiff’) against defendants Design Studio Inc. (“Design”) and Rose C. Christo a/k/a Roseda Desborder (“Christo”) (collectively, “Defendants”), on Plaintiffs claims for breach of contract, negligence, fraud, deceptive trade practices, and conversion of property. (See Dkt. 8.) For the reasons set forth below, this Court finds that, regardless of any liability established by Defendants’ default, Plaintiffs submissions to this Court are wholly inadequate to support her damages claims, and I therefore recommend that no damages be awarded.
BACKGROUND
A. Factual Background
Plaintiff resides in New York, in a cooperative apartment that she owns (Apt. 22-D, or the “Apartment”), located at 504 Grand Street, New York, New York 10002 (the “Building”). (Compl. ¶¶ 1, 9; see also Plaintiffs Proposed Findings of Fact, dated June 7, 2010 (“Proposed Findings”), at 1
Plaintiff alleges that, on or about November 20, 2006, she received a proposal from Defendants offering to provide general contractor services for a project to renovate the Apartment (the “Renovation Project”). (Id. at ¶ 7.) At all relevant times, Defendants represented to Plaintiff that they were “licensed to act as a general contractor to install heating, air-conditioning, plumbing, electrical systems, and to perform general contractor work,” including the full renovation of the Apartment. (Id. at ¶ 6.) Plaintiff accepted Defendants’ proposal, purportedly entering into a contract with Defendants (the “Contract”), on or about November 20, 2006. (Id. at ¶ 8.) As described by Plaintiff, the Contract required Defendants
to install, supervise, and manage the installation of an electrical, heating, plumbing, and/or air-conditioning system and engage in the renovation of the [Apartment] subject to stock certifícate,proprietary lease, house rules, and the City of New York’s Building Code Rules and Regulations that would be suitable for the operation of the [Apartment].
(Id. at ¶ 9.)
Plaintiff claims that she fully performed all promises and conditions under the Contract (id. at ¶ 10), but that Defendants negligently failed to exercise ordinary and reasonable care and skill in planning, designing, supervising, and managing the Renovation Project, and thereby breached the Contract (id. at ¶ 21). Further, Plaintiff alleges that, after negligently executing the Renovation Project, Defendants abandoned the project and returned none of the money that Plaintiff-had paid to them under the Contract. (Id. at ¶ 11.) Plaintiff describes the work performed by Defendants on the Apartment as “grossly inadequate.” (Id. at ¶ 21.) She also claims that Defendants intentionally misrepresented their ability to renovate the Apartment, their ability to perform the requisite construction and electrical tasks, and their willingness to complete these tasks. (Id. at ¶¶ 28, 31.) Although she provides no details, Plaintiff also asserts that Defendants have misrepresented their abilities as general contractors to other property owners and have failed to complete other construction projects. (Id. at ¶ 32.)
The Complaint alleges that the Building’s Cooperative Board (the “Board”) cited Plaintiff for “several violations” that were the result of Defendants’ negligent execution of the Renovation Project, and also required her to hire a contractor and electrician to repair Defendants’ work and complete the Renovation Project. (Id. at ¶¶ 12, 13.) Plaintiff claims that she paid the substitute contractor and electrician a total of $50,000 to complete the necessary work, and that she also paid an attorney $10,000 in legal fees to resolve issues with the Board that were related to the violations. (Id. at ¶¶ 13, 14.) Plaintiff further claims that, as a result of Defendants’ negligent execution of the Renovation Project, she was constructively evicted from the Apartment for 21 months. (Id. at ¶ 15.) During that period, Plaintiff could not sublet the Apartment (id. at ¶ 19), and, although she does not break down these figures, she claims, in her Complaint, that she spent a total of $105,000 ($5000 per month for 21 months) on “carrying costs” for the Apartment and “alternate housing” (id. at ¶¶ 16-18). Finally, Plaintiff alleges that Defendants failed to return cabinet hardware to her, including “original latches and catches circa 1929,” all of which, she claims, had been “professionally re-chromed.” (Id. at ¶ 35.)
In her Complaint, Plaintiff asserts claims against Defendants for: (1) breach of contract, (2) negligence, (3) fraud, (4) deceptive trade practices, and (5) conversion of property.
(1) $54,000 in fees that she paid to Defendants under the Contract, plus interest at a rate of 9% per year;
(2) $62,259.14 in fines that the Board levied against her for building code violations;
(3) $84,000 in lost rental income for the 21 months that she was constructively evicted from the Apartment, a sum that she states is “inclusive” of the mortgage and maintenance payments that she made for the Apartment during that time period;
(4) $88,000 in lost rental income for a period of an “additional” 22 months, during which Plaintiff was allegedly prohibited by the Board from subletting the Apartment;
(5) $10,000 for Defendants’ conversion of 10 pieces of antique cabinet hardware;
(6) $7,500 in legal fees that she paid to an attorney to prosecute this case; and
(7) $1,984 in fees that she paid to an attorney “for negotiations with the Board of Directors.”
(Proposed Findings at 4-5.)
B. Procedural History
Plaintiff commenced this action by filing her Comрlaint in December 2008. (Dkt. 1.) When, after being served with process, Defendants failed to respond to the Complaint, the Court (Holwell, J.) entered a default judgment against them, as to liability, and referred the matter to this Court to determine the appropriate amount of damages and attorneys’ fees, if any, to be awarded. (Dkt. 8.) This Court then issued a Scheduling Order for submissions for a damages inquest (Dkt 11), and, upon Plaintiff request for an extension of time, the Court issued an Amended Scheduling Order (Dkt. 11). In both the Court’s original and amended Scheduling Orders, the Court expressly informed Plaintiff that she should submit proposed findings of fact and conclusions of law, which
should specifically tie the proposed damages figure(s) to the legal elaim(s) on which liability has now been established; should demonstrate how [Pjlaintiff has arrived at the proposed damages figuréis); and should be supported by an affidavit attaching as exhibits and containing an explanation of any documentary evidence that helps establish the proposed damages.
(Dkt. 10, at ¶ 2; Dkt. 11, at ¶ 2.) The Court’s Amended Scheduling Order required Plaintiff to serve and file her submission no later than June 21, 2010. (See Dkt. 11, at ¶ 1.)
On June 21, 2010, Plaintiff delivered her Proposed Findings to my chambers, although she apparently did not file them.
DISCUSSION
I. APPLICABLE LEGAL STANDARDS
Although “a default judgment entered on well-pleaded allegations in a
Where a defaulting defendant has not made any submission on a damages inquest, the Court must assess whether the plaintiff has provided a sufficient basis for the Court to determine damages. See Transatl. Marine Claims Agency, Inc. v. Ace Shipping Corp.,
Where, on a damages inquest, a plaintiff fails to demonstrate its damages to a reasonable certainty, the court should decline to award any damages, even though liability has been established through default. See Griffiths v. Francillon, No. CV 10-310KJFB) (GRB),
II. ADEQUACY OF PLAINTIFF’S PLEADED CLAIMS
Without a response from Defendants, this Court must first determine whether the allegations in Plaintiffs Complaint are sufficiently pleaded to establish Defendants’ liability. See Bambu Sales, Inc.,
Here, as discussed further below, the allegations of Plaintiffs Complaint, taken as true, are sufficient to establish Defendants’ liability for breach of contract under New York law,
A. Breach of Contract
To state a claim for breach of contract under New York law, a plaintiff must allege four elements: (1) the existence of a contract; (2) the performance of that contract by one party; (3) the breach of that contract by the other party; and (4) damages. Terwilliger v. Terwilliger,
B. Negligence and Fraud
Unlike her contract claim, Plaintiffs negligence and fraud claims cannot be maintained, as pleaded. To state a negligence claim under New York law, a plaintiff must plead (1) a duty owed to the plaintiff by the defendant; (2) a breach of that duty; and (3) an injury “substantially caused” by that breach. Lombard v. Booz-Allen & Hamilton, Inc.,
Similarly, Plaintiff cannot maintain her fraud claim, which is duplicative of her contract claim. Under New York law, the elements of a fraudulent misrepresentation clаim are: “(1) [that the] defendant made a material misrepresentation of fact; (2) that the misrepresentation was made intentionally in order to defraud or mislead the plaintiff; (3) that the plaintiff reasonably relied on the misrepresentation; [and] (4) that the plaintiff suffered damage as a result of its reliance on the defendant’s misrepresentation.” Harding v. Naseman, No. 07 Civ. 8767(RPP),
C. Deceptive Trade Practices
Plaintiff also cannot maintain her claim for deceptive trade practices, under the applicable New York law, which prohibits “[deceptive acts or practices in the conduct of any business.” N.Y. Gen. Bus. L. § 349(a); see also id. § 349(h) (providing for private right of action under statute).
Therefore, to make out a prima facie case under this law, a plaintiff must plead facts capable of establishing that “(1) the defendant’s deceptive acts were directed at consumers, (2) the acts are misleading in a material way, and (3) the plaintiff has been injured as a result.” Maurizio v. Goldsmith,
Plaintiffs deceptive trade practices claim, as alleged in the Complaint, has two fatal flaws. First, Plaintiff has not alleged where the supposed deceptive act took place. See Siotkas,
Second, even if the Court were to infer from Plaintiffs pleading that any deceptive act by Defendants likely took place in New York (the location of the Apartment), Plaintiff has still not adequately pleaded that Defendants actually directed “deceptive acts” (ie., misrepresentations or omissions) at consumers at large, nor has she attributed any specific deceptive statement or act to Defendants. Plaintiff does allege in her Complaint that, in her case, Defendants “engaged in deceptive trade practices [by] intentionally misrepresenting their ability to perform under the agreement between the parties” (Compl. ¶ 31), and she further alleges, in general terms, that Defendants have “engaged in this practice with several other parties” (id. at ¶ 32). In addition, in support of these allegations, Plaintiff has now submitted a copy of a newspaper article, reporting that Christo was charged by a New Jersey prosecutor for selling home improvements to a property owner without registering with the New Jersey Department of Consumer Affairs. (Id. at ¶ 32.) The sparse and conclusоry allegations of Plaintiffs Complaint, however, are insufficient to plead that Defendants directed deceptive acts at consumers in New York within the meaning of the statute, and Plaintiff cannot save her pleading by relying on a news article that is hearsay and that, in any event, focuses on Christo’s alleged violation of New Jersey law.
Based on the Complaint, the parties’ dispute in this case is best characterized as a private contract dispute, which the statute does not cover. See id. at 25 (“Private contract disputes unique to the parties ... would not fall within the ambit of the statute.”). Accordingly, Plaintiff cannot maintain a deceptive trade practices action, and no award of damages for this claim would be appropriate.
D. Conversion of Property
“[Conversion is the unauthorized assumption and exercise of the right of ownership over goods belonging to another to the exclusion of the owner’s rights.” Thyroff v. Nationwide Mut. Ins. Co.,
Although there are certain exceptions to the requirement that “demand and refusal” be pleaded for a conversion claim, see 470 West End Corp. v. East River Sav. Bank,
III. ADEQUACY OF SUPPORT FOR CONTRACT DAMAGES
In its Order directing Plaintiff to file Proposed Findings of Fact and Conclusions of Law, the Court noted that, in her submission, Plaintiff “should specifically tie [her] proposed damages figure(s) to the legal claim(s) on which liability has now been established.” (Order, dated June 14, 2010 (Dkt. 11), at 1) In her Proposed Findings, however, Plaintiff merely lists several categories of requested damages, making no effort to tie any of those purported damages to her particular legal claims. As the Court cannot discern whether Plaintiff is seeking only certain categories of damages on her contract claim (the one claim she has adequately pleaded), the Court will consider each damages category in turn, in relation to that claim.
A. Reimbursement of Fees Paid to Defendant Christo
Plaintiff first seeks reimbursement of the fees that she paid to Defendants, which she asserts totaled $54,000. (Proposed Findings at 4.) In support of this damages demand, Plaintiff has submitted, through a declaration of counsel: (1) copies of five cancelled checks apparently written by her and made payable to Chris-to, totaling $34,000 (id. Ex. E (copies of checks bearing dates from Sept. 30, 2006 to Feb. 9, 2007)); (2) a letter from a bank stating that, on November 16, 2008, Plaintiff initiated a wire transfer in the amount of $15,000 to Christo (id.); and (3) an apparent checking account receipt, dated “11/29,” indicating that a check was written in the amount of $5,000 and made
First, the Court notes that the Contract, as attached to Plaintiffs Proposed Findings (Proposed Findings Ex. A), is stated to be an agreement between Plaintiff and “Rose C. Christo Design Studio Inc.” (id.). It is not even clear that this entity is the same as “Design Studio,” the entity named as a defendant in this action, but, assuming it is, Plaintiff has provided no explanation as to why she apparently made payments, by check, directly to the principal of that company (ie., Christo), as opposed to the company with which she had actually contracted. Certainly, Plaintiffs Complaint does not include any well-pleaded allegations that explain this or that separately would support holding Christo personally liable for the conduct of the corporate defendant.
Second, nowhere does the Contract state that Design’s work on the Renovation Project was to be performed for a contract price of $54,000. To the contrary, the Contract, on its face, states: “[Plaintiff] [ajgrees to pay Rose C. Christo/Design Studio Inc. [t]he sum of [$]20,000 / [$]10,-000 (half) to start the Project and the balance of $10,000 to be paid in full upon completion of the project.” (Id.) Another amount — perhaps $1,500 — is also written in below this, by hand, and marked “paid” (see id.), but the writing is not entirely legible, and Plaintiff has provided no explanation of this handwritten addition. The Contract goes on to state that “[t]his Agreement constitutes the entire Agreement between both parties and shall not be supplemented, modified or amended unless executed in writing by both parties.” (Id.) Based on this, it appears that, in the absence of written change orders (none of which have not been provided to the Court), Plaintiff was only contractually obligated to pay defendant Design $10,000 (or perhaps $11,500, although the additional amount is not explained) until the job was satisfactorily completed.
Third, although a “Materials List,” with stated prices, is attached to the Contract and arguably incorporated therein, it is not clear from this list, standing alone, that (a) Plaintiff paid Defendants to supply all of the itemized materials, (b) Plaintiff paid the listed prices, or (c) the materiаls were not supplied by Defendants or, if they were supplied, they were unsuitable or unusable for the job, as eventually completed by another contractor. On these points, the Court notes that the listed total for the itemized materials, plus “Electrical Supplies,” is $17,538.10 — a sum that, even added to the fees specified on the face of the Contract, would still not total the $54,000 that Plaintiff claims to have paid for the Renovation Project. Moreover, two of the items have handwritten question marks after them, and one has no price, suggesting that the list may have been only a preliminary price list. Also, at the end of the list,
$10,000.00 Supplies
LABOR: $10,000.00 LABOR
$20,000.00
(Id.) The Court also notes that the listed materials include, inter alia, a French door, a bathroom door, a garbage disposal, kitchen and bathroom cabinets, and closet shelves and rods. (See id.) Plaintiff offers absolutely no information as to whether these types of materials, if paid for by her, were delivered and ultimately installed in her apartment, whether by Defendants or a substituted contractor. The Court, however, notes that an exhibit attached to Plaintiffs Complaint (Compl. Ex. B), which appears to describe the work needed to complete the Renovation Project after it was abandoned by Defendants, lists numerous materials — including items such as bathroom cabinets and closet shelves — as “already purchased” (see id.). Plaintiff has not articulated any theory under which she could possibly be entitled to a refund of amounts she paid for items that were actually provided to her and were eventually installed for her benefit and enjoyment.
Finally, even assuming Plaintiff paid $54,000 to Defendants, she has not demonstrated that she would be legally entitled to reimbursement of this sum, or any portion thereof, as a remedy for Defendants’ claimed breach of contract. In a contract case involving deficient construction work, “[t]he general rule,” under New York law, “is that the measure of damages is the market value of the cost to repair the faulty construction,” Rivers v. Deane,
As to her repair/completion costs, while Plaintiff alleges in her Complaint that she paid another $50,000 to repair and complete the defective work, she does not, in her Proposed Findings, seek that sum as damages. In connection with this damages inquest, she has also not submitted any affidavit or declaration by anyone with person knowledge of these costs or of the scope of the work that was necessitated by Defendants’ breach; she has not submitted any documentary support for her claim that she, in fact, paid $50,000 to complete the work for which she originally contracted; and she has not submitted any evidence to demonstrate that, if paid, $50,000 was a reasonable market rate for the services performed. In fact, the only document before the Court that relates to these issues is the above-referenced exhibit to Plaintiffs Complaint (Compl. Ex. B), and while that exhibit supposedly supports Plaintiffs allegation that she “incurred additional expense of approximately Fifty Thousand Dollars to have said second contractor and electrician repair and complete [the] work” (Compl. ¶ 13), the exhibit actually appears to be a contract for certain work to be performed for the price of $26,500 (see id., and Ex. B thereto).
Under the circumstances, this Court cannot recommend that Plaintiff be awarded either the fees she claims to have paid to Christo or the amount she allegedly
B. Reimbursement of Payment for Fines Levied by the Board
In support of her damages claim for * fines purportedly levied on her by the Board as a result of Defendants’ defective work on the Apartment, Plaintiff relies, without explanation, on a document that seems to be a statement of an account in Plaintiffs name, dated March 18, 2010. (Proposed Findings at 4 and Ex. F.) This account statement, however, merely shows a “previous balance” in the amount of $63,200.14, and certain charges related to taxes and utilities. (Id.) The document provides no details regarding the source of this previous balance, and makes no mention of any fine or violation. As such, it is patently insuffiсient to support Plaintiffs damages claim.
The only evidence submitted by Plaintiff that even references “fines” is a copy of a letter dated June 7, 2007, to Plaintiff, from an attorney for the Building’s Cooperative Corporation. (Proposed Findings Ex. D.) This letter states that a report from an electrician retained by the Cooperative Corporation had “reveal[ed] numerous violations” with respect to “improper and unauthorized electrical alteration work that was done in [Plaintiffs] apartment.” (Id. at 1.) Although the letter purports to attach a copy of this electrician’s report (see id. (“as the annexed inspection report reveals, the work was not performed in conformance with the applicable laws and codes .... ”)), no such report has been provided to the Court. In any event, the letter does not state that any fines were being assessed against Plaintiff, much less the specific basis for, or the amount of, any such fines. Rather, the letter mеrely indicates that counsel for the Cooperative would be sending a copy of his letter “to the Board for its review and consideration as to whether fines will be imposed as a results of your breach of the alteration agreement and the damages it has caused ....” (Id. at 2.)
In the absence of any documented — and explained — support for the nature and amount of any fines levied on and paid by Plaintiff, I recommend that her request for reimbursement for the payment of fines be denied.
C. Lost Rental Income, and Reimbursement of Apartment “Carryiny Costs,” Duriny Period of “Constructive Eviction”
In her Proposed Findings, Plaintiff states that she is demanding damages for
Twenty-one months of constructive eviction, resulting in Plaintiffs inability to sublet this apartment for these twenty-one months, with estimated monthly rental income of FOUR THOUSAND ($4,000.00) totaling to EIGHTY-FOUR THOUSAND ($84,000.00). This is inclusive of Plaintiffs monthly mortgage and carrying charges, ONE THOUSAND EIGHT HUNDRED TWELVE AND SIX CENTS ($1,812.06) for twenty-one months, totaling to THIRTY-EIGHT THOUSAND FIFTY-THREE AND TWENTY-SIX CENTS ($38,053.26).
(Proposed Findings at 4.) Nowhere, however, does Plaintiff explain whether the construction, if prоperly performed, would have enabled her to remain in the Apartment, or whether she would have been required to vacate the premises, in any event, given the substantial nature of the work. She also fails to explain how she was “constructively evicted” for 21 months, as she does not state when Defen
Plaintiff also fails to itemize how much of her requested damages constitute her mortgage and maintenance payments for the Apartment, and she further fails to explain how, in the absencе of any contract breach, she would have been relieved from making such payments. She also fails to explain how she could possibly be entitled to recover both the “carrying costs” of the Apartment (see Proposed Findings at 4) and the cost of obtaining “alternate housing,” as suggested in her Complaint (see Compl. ¶ 17), given that she undoubtedly would have had to pay housing costs, in one place or another, regardless of any breach.
Moreover, to the extent Plaintiff may be seeking lost profits from anticipated rental income, Plaintiff has submitted no evidence to support such a damages claim. In a breach-of-contract action, “a plaintiff is entitled to recover lost profits only if he can establish both the existence and amount of such damages with reasonable certainty.” Schonfeld v. Hilliard,
D. Additional Lost Rental Income
Plaintiff also appears to seek recovery for the rental income she supposedly would have received by renting the Apartment for 22 months (i.e., nearly another two years) after the construction work was repaired and complete. (See Proposed Findings at 5.) Although her submission on this point is extremely vague, it seems that Plaintiff is arguing that the Board would have permitted her to sublet the Apartment for that period, but for a souring of the Board’s relationship with Plaintiff caused by Defendants’ negligent and defective work. Plaintiff has submitted absolutely no evidence, of any kind, to support such claimed damages, and I recommend that none be awarded.
E. Payment for Hardware Retained by Defendants
Plaintiff appears to seek the estimated value of the antique hardware retained by Defendants as damages for her conversion claim, not her contract claim (see Proposed Findings at 4, 5), and, indeed, the factual basis for Plaintiffs demand for these dam
F. Legal Fees for Prosecuting this Action
Plaintiff has failed to demonstrate that she is entitled to attorney’s fees for prosecuting this action. “Generally, absent express contractual or statutory provisions to the contrary, attorney’s fees are not recoverable as damages,” Nationwide Auction Co. v. Lynn, No. 90 Civ. 7643(AGS)(THK),
G. Legal Fees for Negotiations with Board
Finally, Plaintiff has failed to show that she is entitled to $1,984 in fees that she allegedly paid tо an attorney “for negotiations with the Board of Directors.” (Proposed Findings at 5.) In support of this damages demand, Plaintiff has submitted a collection of documents that neither individually nor together establish to a reasonable certainty that she is entitled to recoup the fees she seeks.
First, Plaintiff has submitted a copy of a retainer letter dated October 29, 2007, addressed to her from Theresa Racht, Esq. (“Racht”), and bearing Plaintiffs signature. (See id. Ex. H (copy of letter dated Oct. 29, 2007, printed on Racht’s firm’s stationery).) On its face, though, this letter states that Plaintiff was retaining Racht not only “to advise [Plaintiff] and represent [Plaintiff] with respect to ongoing renovation issues concerning [the Apartment],” but also “to provide such advice and consultation on other legal matters as [Plaintiff] may require from time to time.” (Id. (emphasis added).)
Second, Plaintiff has submitted copies of nine invoices (including a duplicate copy of an invoice dated November 6, 2008), totaling $2,001, for legal services purportedly provided by Racht to Plaintiff. (Id. (copies of invoices bearing dates frоm Dec. 6, 2007 to Feb. 6, 2009).) These invoices, however, appear to bill for services well beyond any “negotiations with the Board,” for which Plaintiff claims to seek reimbursement. (See Proposed Findings at 5.) For example, one invoice contains a charge for Racht’s review of a summons and complaint, and another lists a charge for time that Racht spent discussing the election of Board members. (See id. Ex. H.) In fact, not a single one of the nine invoices even mentions “negotiation.” While Plaintiff might be entitled to recover from Defendants for certain of the work that Racht performed, she is certainly not entitled to recover for work that was not reasonably necessary to make her whole for Defendant’s contract breach. Moreover, it is
Finally, Plaintiff has submitted a copy of an email exchange she had with Racht, regarding the amount of Racht’s billing. (See id. (copy of an email exchange between Plaintiff and Racht).) In this exchange, Plaintiff first asks, on June 2, 2010, whether there is an “[e]asy way for you to determine how much money I’ve spent on your legal services in TOTAL? ... It’s for my suit against [Christo].” (Id.) In response, and without explanation, Racht provides the figure of $1,984. (See id.) Not only does this email exchange fail to focus on fees incurred for negotiations with the Board — ie., Plaintiffs claimed damages — but the stated total of Racht’s fees, per her email, does not match the total amount shown in the invoices Plaintiff has separately submitted.
Given the lack of clarity inherent in these documents, they do not demonstrate, with reasonable certainty, that Plaintiff incurred $1,984 in legal fees for counsel’s negotiations with the Cooperative Board. Nor do they demonstrate, with reasonable certainty, that some other sum was incurred for such negotiations, and I therefore recommend that Plaintiffs request for any such amount in damages be denied.
* * *
In sum, despite the Court’s explicit direction to Plaintiff that her damages submission “should demonstrate how [she] has arrived at [her] proposed damages figuréis),” and “should be supported by an affidavit ... containing an explanation of any documentary evidence that helps establish the proposed damages” (see Dkt. 11, quoted supra at 15), Plaintiff has neither provided an adequate basis for the calculation of her contract damages nor provided an explanation, by anyone with personal knowledge, of the meager documentary evidence that she has submitted in support of her application for such damages. Under the circumstances, this Court finds that Plaintiff has not satisfied her burden of demonstrating her contract damages to a reasonable certainty, and has therefore not demonstrated her entitlement to any damаges, on this inquest.
CONCLUSION
For the foregoing reasons, I respectfully recommend that the Court award no contract damages to Plaintiff as a result of Defendants’ default. I further recommend that the default judgment against Defendant be vacated with respect to Plaintiffs inadequately-pleaded negligence, fraud, and deceptive trade practices claims, and that these claims be dismissed with prejudice. As to Plaintiffs claim for conversion of property, I also recommend that the default judgment be vacated, but I recommend that Plaintiff be granted leave to replead this claim if she is able to allege that she demanded the return of her property and that the demand was refused. (See supra at 14 and n. 8.)
Pursuant to 28 U.S.C. § 636(b)(1) and Rule n(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable J. Paul Oetken, United States Courthouse, 500 Pearl Street, Room 630, New York, New York 10007, and to the chambers of the undersigned, United States Courthouse, 500 Pearl Street, Room 525, New York,
Notes
. Except as otherwise noted, the facts set forth herein are taken from Plaintiff’s Complaint (Complaint, dated Nov. 26, 2008 (''Compl.”) (Dkt. 1)), the allegations of which are accepted as true as a result of Defendants' default (see Discussion infra at Section I).
. The pages of Plaintiff's Proposed Findings are not numbered, but this Court has assigned them numbers for ease of reference herein.
. Although Plaintiffs Proposed Findings regarding damages refer only to her claims for breach of contract, “misrepresentation and fraud,” and conversion of property (see Proposed Findings at 3-4), the Court will nonetheless consider the adequacy of Plaintiffs pleading and her damages demands as they relate to each of the claims asserted in thе Complaint, and will not deem any of those claims to have been abandoned on this inquest. See Nwagboli v. Teamwork Transp. Corp., No. 08 Civ. 4562(JGK)(KNF),
. The Court has undertaken to docket this submission, and it is now reflected on the Court's Docket. (See Dkt. 14.)
. Plaintiff’s Proposed Findings are entirely silent on the issue of choice of law; in fact, Plaintiff cites no law whatsoever in her submission. Defendants are also silent on the subject, having filed no response to Plaintiff's submission. Under the circumstances, it is appropriate for the Court to apply New York law — the law of the forum state — to Plaintiff's state-law claims. See Global Switching Inc. v. Kasper, No. CV-06-412 (CPS),
. "A cause of action for breach of contract may be based on an implied promise to exer
. Plaintiff merely claims that Defendants engaged in "deceptive trade practices,” without citing any particular law. (See Compl. V 33.) As such a claim in New York would be governed by Section 349 of the State’s General Business Law, the Court considers that statute here, even though not specifically cited by Plaintiff,
. As Plaintiff may be able to cure the pleading defect in her conversion claim, I recommend that the default against Defendants on this claim be vacated and that Plaintiff be granted leave to replead this claim, to allege that she duly demanded the return of the hardware in question, but that Defendants refused that demand.
. The Court does note that, in the section of the Contract relating to the payment by Plaintiff, the Contract states that Plaintiff agrees to pay certain fees to "Rose C. Christo/Design Studio Inc.” (id.), but the Contract does not explain why a slash has been inserted between Christo’s name and Design Studio Inc. If this slash is meaningful with respect to Plaintiff's payment obligations, Plaintiff herself has not explained it, either in her Complaint or her Proposed Findings.