The opinion of the court was delivered by: CONSTANCE BAKER MOTLEY
Plaintiff Malvina D'Orange ("D'Orange") commenced this action on June 6, 1994 claiming damages under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-68 (1994) ("RICO"). This court, therefore, has subject matter jurisdiction over this matter pursuant to 28 U.S.C. § 1331 (1994).
Defendant Charles L. Feely ("Feely") did not respond to the Complaint in a timely manner. Upon the application of D'Orange, the court entered a default judgement against Feely on July 29, 1994 and referred the matter to a magistrate judge for a determination of the amount of damages. Feely subsequently filed a motion to vacate the default. D'Orange opposed this application. The court heard oral argument on September 30, 1994. By an order of that same date, the court denied Feely's motion.
The court held an inquest on June 29, 1995 to determine the amount of damages to which D'Orange is entitled to recover from Feely. Defendant Feely chose not to appear for this hearing. Instead, Feely's counsel represented that Feely was in Pennsylvania since the originally scheduled date had been changed and requested an adjournment. The requested adjournment was denied. After hearing testimony from the elderly and infirmed D'Orange and receiving in evidence Plaintiff's Exhibits 1 through 8, the court granted Feely an adjournment until the following day, June 30, 1995 at 3:00 p.m.
On June 30, 1995 at 3:00 p.m., Feely again chose not to appear. Counsel for Feely represented to the court that he had spoken with Feely since the previous day's proceedings and reminded Feely of his obligation to appear before this court. Feely, who is still a licensed attorney in New York, was not engaged in any other court appearance and had no medical reason for failing to attend the adjourned inquest. While concluding that Feely thus had no valid excuse, the court nevertheless received in evidence through Feely's counsel Defendant's Exhibits A, B, E, F, G, J and L.
Based upon the default judgement entered against Feely on July 29, 1994 and the evidence presented at the inquest held on June 29-30, 1995, the court makes the following findings of fact and conclusions of law:
1. Feely embezzled funds from Plaintiff in two ways. First, before the death of Clarette Otalera ("Otalera"), D'Orange's sister, Feely embezzled funds that Otalera had entrusted to him pursuant to a power of attorney. Second, Feely embezzled funds that the Plaintiff D'Orange entrusted to him by writing checks to himself and his associates from these funds. The amount that Feely embezzled in each of these ways is discussed below.
A. Embezzlement Under the Power of Attorney.
2. The amount that Feely embezzled under the power of attorney of Otalera can be calculated by subtracting (i) the amount Feely accounted for from (ii) the amount Otalera entrusted to him.
3. Feely's own accounting which he submitted to the Surrogate's Court of the County of Queens demonstrates that he accounted for only $ 17, 641 as of the date Otalera died, November 24, 1989. (Pl.'s Ex. 7 at 1.)
4. Feely has represented to the Departmental Disciplinary Committee for the First Department that Otalera entrusted to him only $ 70,740. (Pl.'s Ex. 4 at 5 (letter of Charles L. Feely).) However, the court cannot accept this representation as true. While Feely has control over all of the evidence concerning his embezzlement, he has provided no corroboration with respect to the claimed ...