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Lenard v. Design Studio

United States District Court, S.D. New York

March 3, 2014

DENA LENARD, Plaintiff,


LORNA G. SCHOFIELD, District Judge.

This diversity case, which involves allegations by plaintiff Dena Lenard ("Plaintiff') that a contractor she hired to renovate her New York City apartment performed poorly, failed to complete the required work, abandoned the project, and wrongfully kept Plaintiffs property, is for - the second time - before this Court for a damages inquest, on the default of defendants Design Studio ("Design") and its principal, Rose C. Christo a/k/a Roseda Desbordes ("Christo") (collectively, "Defendants"). The first time, almost two years ago, this Court issued a Report and Recommendation to the Honorable J. Paul Oetken, to whom the case was then assigned, [1] recommending that no damages be awarded on Plaintiff's contract claim, and that the default judgment entered on Plaintiff's original Complaint be vacated as to Plaintiffs other claims. (Dkt. 16.) As to those remaining claims, this Court recommended that Plaintiff's claims for negligence, fraud, and deceptive trade practices be dismissed with prejudice, but that Plaintiff be granted leave to replead her claim for conversion of property. The Court adopted that recommendation in August, 2012. (Dkt. 17.) Plaintiff has now repleaded her conversion claim; the Court has entered a new default judgment on that claim; and the matter has been referred to this Court for another inquest, just as to that single claim.

For the reasons that follow, I recommend that Plaintiff be awarded $2, 024.10 in damages on her repleaded conversion claim.


A. Plaintiffs Original Complaint and This Court's Prior Recommendation

Plaintiff commenced this action by filing a Complaint in December 2008, asserting a number of distinct legal claims against Defendants, as noted above. ( See 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 received from Plaintiff an attorney declaration and attached exhibits (Dkt. 15), which it found did not support the claimed damages figures.

Based on Plaintiff's Complaint and inquest submissions, this Court issued a Report and Recommendation on June 21, 2012 (Dkt. 16), recommending that no damages be awarded on Plaintiffs breach of contract claim and that the default judgment be vacated with respect to her various tort claims, which were inadequately pleaded, as a matter of law. Reasoning that most of those additional claims should be dismissed with prejudice, as repleading would be futile, this Court recommended that Plaintiff be granted leave to replead only her conversion claim, if she were "able to allege that she demanded the return of her property and that the demand was refused." (Dkt. 16, at 26.)

After receiving no objections to this Court's Report and Recommendation, the Court (Oetken, J.) adopted it, in its entirety, by Order dated August 24, 2012. (Dkt. 17.)

B. Plaintiffs Amended Complaint

Plaintiff filed her Amended Complaint on September 24, 2012. ( See Dkt. 18 (Amended Complaint, dated Sept. 21, 2012 ("Am. Compl.")).[2]) As pleaded, the Amended Complaint looks as if it contains only a single cause of action, but it once again contains language suggestive of a number of potential legal claims, including a breach-of-contract claim and various tort claims. Specifically, the Amended Complaint alleges the following:

Plaintiff is a resident of New York and owns a cooperative apartment (the "Apartment"), located at 504 Grand Street, New York, New York 10002 (the "Building"). ( Id. ¶¶ 1, 9.) Defendant Design is a New Jersey corporation ( id. ¶ 2), and defendant Christo is a resident of New Jersey and the majority shareholder of Design ( id. ¶¶ 3, 4).

On or about November 20, 2006, Plaintiff received a proposal from Defendants offering to provide general contractor services for a project to renovate the Apartment (the "Renovation Project"). ( Id. ¶ 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 perform general contractor work, " including the full renovation of the Apartment. ( Id. ¶ 6.) Plaintiff accepted Defendants' proposal, purportedly entering into a contract with Defendants (the "Contract"), on or about November 20, 2006. ( Id. ¶ 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]... owned by the Plaintiff subject to a stock certificate, proprietary lease, house rules and the City of New York's Building Code Rules and Regulations that would be suitable for the operation and habitation of [the Apartment].

( Id. ¶ 9.)

According to Plaintiff, she "fully performed all promises and conditions required [under the Contract] as well as paying the Defendants fifty four thousand dollars ($54, 000.00)" ( id. ¶ 10), but Defendants breached the Contract by negligently constructing the Renovation Project, later abandoning it, and failing to return any of Plaintiffs money ( id. ¶ 11). Moreover, Plaintiff claims that Defendants "knowingly deprived [her] of her rights" ( id. ¶ 21) by retaining possession of purportedly "irreplaceable" antique latches and cabinet hardware removed from the Apartment, estimated to be worth approximately $10, 000 ( id. ¶¶ 12, 21).

The Building's Cooperative Board (the "Board") cited Plaintiff for "several violations, " which, she claims, were the result of Defendants' negligent execution of the Renovation Project, and the Board also required her to hire and pay other contractors to repair Defendants' work. ( Id. ¶ 13.) Plaintiff asserts that, as a result of Defendants' negligent actions, she was constructively evicted from the Apartment for 21 months, during which time she paid a total of $105, 000 ($5, 000 per month for 21 months) in "carrying costs" for the Apartment and "alternate housing." ( Id. ¶¶ 14-16.)

C. Defendants' Default on the Amended Complaint, and the Court's Referral for a New Damages Inquest

On February 1, 2013, the Court (Oetken, J.) ordered Plaintiff to advise the Court whether the Amended Complaint had been served, and if not, to show good cause why the case should not be dismissed. (Dkt. 19.) Plaintiff requested and was granted an extension of time to effectuate service (Dkt. 21), and finally served Defendants on February 20, 2013 ( see Mts. 22-24).

Subsequently, Plaintiff moved again for the entry of a default judgment in her favor (Dkt. 28), as Defendants once again failed to answer or otherwise respond to the Amended Complaint. The Court (Schofield, J.) granted Plaintiff's motion for default judgment as to liability solely on Plaintiffs claim for conversion (Dkt. 32), and referred the matter to this Court to determine the appropriate amount of damages, if any, to be awarded on that claim (Dkt. 34).

This Court issued a new Scheduling Order for submissions for a damages inquest, expressly directing Plaintiff, as it had prior to its previous inquest, to submit proposed findings of fact ...

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