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CAPPETTA v. LIPPMAN

February 6, 1996

GARY M. CAPPETTA, Plaintiff, against MARSHALL E. LIPPMAN and MARSHALL E. LIPPMAN, P.C., Defendants.


The opinion of the court was delivered by: BATTS

 DEBORAH A. BATTS, United States District Judge.

 Plaintiff Gary M. Cappetta ("Plaintiff") objects to an April 24, 1995, Report and Recommendation ("Report") of Magistrate Judge Michael H. Dolinger ordering Defendant Marshall E. Lippman, P.C. ("Defendant") to pay Cappetta $ 3,515.56 in damages for attorney malpractice. Defendant has submitted papers opposing Plaintiff's Objections but has not submitted any of its own Objections to the Report. Plaintiff's Objections are considered below.

 I. BACKGROUND

 Plaintiff worked as a professional wrestling announcer for Titan between 1974 and 1985. (Report at 3.) After leaving Titan, he learned that Titan had been selling videotapes of wrestling events that included his performance as ring announcer. (Report at 3-4.) He retained Defendant to bring suit against Titan and the video company in December 1987, alleging that Titan had used his image, in violation of section 51 of the New York Civil Rights Law. (Report at 4.)

 The lawsuit against Titan was eventually dismissed by the Hon. Robert P. Patterson, after Defendant failed to appear on behalf of Plaintiff at pre-trial motion hearings and conferences, and did not file responses to Titan's motions. (Report at 5.) Furthermore, Defendant did not even tell Plaintiff that his case was dismissed. (Report at 5.) In an attempt to save his lawsuit, Plaintiff hired the firm Lowenstein, Sandler, Kohl, Fisher & Boylan to move to vacate the dismissal. (Report at 5.) This attempt was unsuccessful. (Report at 5.)

 The lawsuit at issue here was commenced on December 18, 1992. (Report at 2.) Lippman and Lippman, P.C. both failed to answer or respond to the Complaint, and the District Court granted a Default Judgment against the two defendants. (Report at 2.) The District Court referred the case to Judge Dolinger for a post-default inquest as to damages. (Report at 2.) Before the inquest was held, the District Court vacated the Default against Lippman personally and dismissed the action against him. However, the Default against Defendant remained. (Report at 2.)

 Judge Dolinger held an inquest on August 9-10, 1994. (Report at 3.) After hearing testimony from both sides, Judge Dolinger issued a Report finding Defendant not liable for any damages from the underlying action against Titan, nor for any punitive damages for attorney malpractice. Judge Dolinger did, however, find Defendant liable for $ 3,515.56 in damages to Plaintiff for hiring a new firm to attempt to re-open the underlying action. Pursuant to Fed. R. Civ. P. 72, the parties had 10 days to object to this Report. Plaintiff filed six Objections; Defendant filed only a response to the Objections. The Court is now called upon to assess the validity of Plaintiff's Objections.

 II. DISCUSSION

 A. Standard of Review

 A district court assessing a magistrate judge's findings of fact and recommendations for disposition shall make a "de novo determination of those portions of the report . . . to which objection is made." 28 U.S.C. ยง 636(b)(1)(B)-(C); accord Fed. R. Civ. P. 72(b). In this context, "de novo determination" means that the district court must review the magistrate's findings and determine whether "reliance should be placed on those findings; the reviewing court is not required to rehear testimony adduced at the magistrate's inquest." Felice Fedder Oriental Art, Inc. v. Scanlon, 708 F. Supp. 551, 552 (S.D.N.Y. 1989) (citing United States v. Raddatz, 447 U.S. 667, 671-77, 65 L. Ed. 2d 424, 100 S. Ct. 2406 (1980)).

 B. Burden of Proof

 A party's default in an action is a concession of liability, but is not a concession of damages. Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974). Damages must be proved by the plaintiff in a post-default inquest. Id.; Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992), cert. denied, 506 U.S. 1080, 113 S. Ct. 1049, 122 L. Ed. 2d 357 (1993); Gonzalez v. Rakkas, No. 93- CV-3229, 1995 WL 451034, at *3 (E.D.N.Y. July 25, 1995). Thus, Defendant's default at the ...


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