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Barbosa v. Jastrzab

March 30, 2009

ERNEST BARBOSA, PLAINTIFF,
v.
JULITA M. JASTRZAB, DEFENDANT.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff filed this breach of contract action on August 11, 2008. See Dkt. No. 1.*fn1 In his complaint, Plaintiff asserts three causes of action. In his first cause of action, Plaintiff claims that "[t]here existed a valid and enforceable oral contract between . . . Plaintiff and . . . Defendant regarding . . . Plaintiff's loan to . . . Defendant of $25,000.00 in September of 2005." See Complaint at ¶ 16. Furthermore, Plaintiff claims that he tendered the $25,000.00 to Defendant as evidenced by a cancelled check, see id. at ¶ 17; that Defendant breached the oral contract by failing to repay the amount she borrowed from him, see id. at ¶ 18; and that Defendant's breach of the oral contract injured him in the amount of $25,000.00 plus the lawful rate of interest, see id. at ¶ 19.

In his second cause of action, Plaintiff alleges that a valid and enforceable written contract exists between him and Defendant as evidenced by the acknowledgment and promissory note dated September 4, 2006, see id. at ¶ 21; that he actually lent the sum of $100,000.00 to Defendant, see id. at ¶ 22; that Defendant breached the written contract by failing to repay the amount to him, see id. at ¶ 23; and that Defendant's breach of the written contract injured him in the amount of $100,000.00 plus interest at the rate of five percent per annum, see id. at ¶ 24.

Finally, in his third cause of action, Plaintiff alleges that a valid and enforceable written contract exists between him and Defendant as evidenced by the acknowledgment and promissory note dated September 27, 2006, see id. at ¶ 26; that he actually lent the sum of $37,000.00 to Defendant, see id. at ¶ 27; that Defendant breached the written contract by failing to repay him the amount she had borrowed, see id. at ¶28; and that Defendant's breach of the written contract injured him in the amount of $37,000.00 plus interest at the rate of six percent per annum, see id. at (c).*fn2

On September 8, 2008, Plaintiff requested an entry of default, see Dkt. No. 5, which the Clerk of the Court entered on September 10, 2008, see Dkt. No. 6.*fn3 Currently before the Court is Plaintiff's motion for entry of a default judgment. See Dkt. No. 7.*fn4

II. DISCUSSION

A. Standard of review

When a court considers a motion for the entry of a default judgment, it must "accept[] as true all of the factual allegations of the complaint . . . ." Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981) (citations omitted). However, the court cannot construe the damages alleged in the complaint as true. See Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999) (citations omitted). Rather, the court must "conduct an inquiry in order to ascertain the amount of damages with reasonable certainty." Id. (citation omitted). The inquiry "involves two tasks: [1] determining the proper rule for calculating damages on such a claim, and [2] assessing plaintiff's evidence supporting the damages to be determined under this rule." Id. Finally, "'it [is] not necessary for the District Court to hold a hearing [to determine damages], as long as it ensured that there [is] a basis for the damages specified in the default judgment.'" Grabowski v. Gizzi, No. 8:07-CV-1242, 2008 WL 5244117, *1 (N.D.N.Y. Dec. 15, 2008) (quoting Fustok v. ContiCommodity Services, Inc., 873 F.2d 38, 40 (2d Cir. 1989)).

B. Oral agreement dated September 30, 2005

Plaintiff seeks an entry of a default judgment with respect to the alleged oral agreement that he and Defendant entered into on September 30, 2005, pursuant to which he loaned her $25,000.00, which she agreed to repay in full with interest.*fn5

Under New York General Obligations Law § 5-701,

[e]very agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking: 1. By its terms is ...


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