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Joy Annexstein v. Vincent Inzerilli

February 16, 2012


The opinion of the court was delivered by: A. Kathleen Tomlinson, Magistrate Judge



Plaintiff Joy Annexstein commenced this personal injury action against Defendants Vincent Inzerilli, VIMAG Properties, LLC, and VMHC Properties, LLC ("Defendants") arising out of a slip and fall at an apartment building owned by the Defendants. DE 1. Plaintiff moved for a default judgment against the Defendants after they failed to answer or otherwise move in response to the Complaint. DE 2. Judge Spatt entered a default judgment against the Defendants and referred this matter to me for an inquest to determine and recommend what damages, if any, are appropriate, including attorney's fees and costs. DE 4.


According to the Complaint, Plaintiff lived on the second floor of an apartment building located at 920 North 5th Street, New Hyde Park, New York which was owned and operated by Defendants. On August 15, 2007, Plaintiff alleges that she "was caused to trip/slip and fall" at the apartment building due to a "defective, faulty, damaged, broken down, uneven, malfunctioning, out of order, inoperative, defective and/or malfunctioning floors, landing, and staircase . . . ." Compl. ¶ 52. Plaintiff further alleges that she injured her cervical spine in the fall and that the fall was caused by Defendants' negligence. Id.

After Judge Spatt granted Plaintiff's motion for a default judgment, this Court issued an Order directing Plaintiff to submit documentation to support her claim for damages by May 31, 2011. The documentation was to include an affidavit from Plaintiff, her medical records, support for her lost wages claim, contemporaneous billing records for the attorney's fee claim, and any other relevant material. DE 5. The Court advised Plaintiff that no damages could be awarded without supporting documentation. Id. Counsel for Plaintiff was granted numerous extensions and concessions to enable her to comply with this directive, including the following:

* On May 19, 2011, counsel for Plaintiff requested to have Plaintiff's medical records subpoenaed directly to the Court to alleviate duplication costs. Counsel further requested an extension of time to July 14, 2011 to submit the requested documents. DE 6. The Court granted the request for an extension and sought further clarification regarding the request to have records subpoenaed directly to the Court since Plaintiff would still need to serve the records on Defendants.

DE 7. Thereafter, Plaintiff requested a telephone conference and a conference was scheduled. See DE 8, 9. At the telephone conference, the Court agreed to "so order" the subpoenas for the medical records and granted Plaintiff a further extension of the time to submit supporting documentation. DE 11.

* On September 15, 2011, four days before the supporting documents were due, Plaintiff again requested an extension of time. The Court initially denied the request based on Plaintiff's failure to assert and support a claim of good cause for the delay. See DE 16; Electronic Order dated September 16, 2011. The Court later granted an extension of the deadline to October 6, 2011 after Plaintiff's counsel submitted an explanation for the continued delay, but denied Plaintiff's request to be relieved of her obligation to serve Defendants with a copy of the medical records due to the expense. See DE 18; Electronic Order dated September 19, 2011.

* Once again, on October 4, 2011, Plaintiff submitted a request for an extension of the deadline to submit documents due to continued difficulty securing the requested documentation from the medical sources. DE 19. The Court granted an extension of the deadline to November 28, 2011 and scheduled a telephone conference for October 24, 2011 to discuss the reasons for the six-month delay. DE 20, 22. At that October 24, 2011 conference, the Court advised counsel for Plaintiff that, due to her professed difficulties obtaining affidavits from the Plaintiff's doctors, the Court would not require doctor affidavits in support of Plaintiff's request for medical expenses and "the submission of an attorney affirmation attaching certified copies of the medical records along with copies of the medical bills would be sufficient." See DE 22. Plaintiff's counsel also informed the Court that the only support she intended to provide for Plaintiff's pain and suffering damages was an affidavit from the Plaintiff. The Court advised counsel that pain and suffering damages were typically proven through expert testimony and that any claim for pain and suffering damages "must be supported by relevant case law as well as appropriate evidence." Id.

Ultimately, in late November 2011, Plaintiff's counsel submitted the final documents in support of Plaintiff's claim for damages.


A default constitutes an admission of all well-pleaded factual allegations in the complaint and the allegations as they pertain to liability are deemed true. Joe Hand Promotions, Inc. v. El Norteno Rest. Corp., No. 06-CV-1878, 2007 WL 2891016, at *2 (E.D.N.Y. Sept. 28, 2007) (citing Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992)), cert. denied, 506 U.S. 1080 (1993)); BMG Music v. Pena, No. 05-CV-2310, 2007 WL 2089367, at *2 (E.D.N.Y. July 19, 2007).

A default judgment entered on the well-pleaded allegations in the complaint establishes a defendant's liability. See Garden City Boxing Club, Inc. v. Morales, No. 05-CV-0064, 2005 WL 2476264, at *3 (E.D.N.Y. Oct. 7, 2005) (citing Bambu Sales, Inc. v. Ozak Trading, Inc., 58 F.3d 849, 854 (2d Cir. 1995)). The only question remaining, then, is whether Plaintiff has provided adequate support for the relief she seeks. Greyhound Exhibitgroup, Inc., 973 F.2d at 158. The moving party need only prove "that the compensation sought relate to the damages that naturally flow from the injuries pleaded." Id. at 159.

In determining damages not susceptible to simple mathematical calculations, Federal Rule 55(b)(2) gives courts discretion to determine whether an evidentiary hearing is necessary or whether to rely on detailed affidavits or documentary evidence. Action S.A. v. Marc Rich and Co., Inc., 951 F.2d 504, 508 (2d Cir. 1989). The moving party is entitled to all reasonable inferences from the evidence it offers. Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981).


Plaintiff fell down a flight of stairs in her apartment building on August 15, 2007 and sustained serious injury to her cervical spine. Plaintiff seeks to recover damages in the following amounts: $186,808.84 for medical expenses; $21,000.00 for attorney's fees; and $5,000,000.00 for pain and suffering. DE 27. Plaintiff has submitted the following documents in support of this request: (A) a letter from Plaintiff's attorney, Milene Mansouri, explaining the damages sought and the legal basis for the claimed damages [DE 27] (the "Mansouri Letter"); (B) the October 25, 2011 Affidavit of Dr. Michael Lefkowitz ("Lefkowitz Aff."), Plaintiff's treating neurosurgeon, outlining Plaintiff's injuries; (C) the September 29, 2011 Affidavit of Plaintiff Joy Annexstein detailing her injury and its effects ("Pl's. Aff."); and (D) various unauthenticated documents that are purportedly medical records from the North Shore University Hospital. With the exception of the Mansouri Letter, the remainder of the documents were filed under seal pursuant to the Court Order. DE 17.*fn1 The Court finds Plaintiff's submissions to be sufficient evidence to form the basis for an award of damages. The following discussion assesses the amount of damages to which Plaintiff is entitled based upon the information set forth in Plaintiff's submissions which have now been evaluated by the Court.

A. Medical Expenses

Plaintiff seeks to recover the $40,500*fn2 she states that she owes Dr. Lefkowitz and the $140,308.84 she purportedly owes North Shore University Hospital. Plaintiff also seeks $6,000 for "out of pocket expenses for the home health aide." DE 18. Medical expenses are recoverable in personal injury actions. See Braccia v. D'Blass Corp., No. 08-CV-8927, 2011 WL 2848146, at *4 (E.D.N.Y. June 13, 2011), adopted by 2011 WL 2848202 (E.D.N.Y. July 11, 2011); Restatement (Second) of Torts ...

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