Opinion

Government Employees Insurance Company v. Binns

Court
District Court, E.D. New York
Filed
Apr 3, 2024
Cited by
0 cases
Authority
More cited than 26.8%

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

GOVERNMENT EMPLOYEES INSURANCE RAN

COMPANY, GEICO INDEMNITY COMPANY, voc wes2 (Ni coy py

GEICO GENERAL INSURANCE COMPANY, ~ ( ) @®)

GEICO CASUALTY COMPANY,

Plaintiffs,

~against-

LIANA BINNS, N.P., et al.,

Defendants.

NICHOLAS G. GARAUFIS, United States District Judge.

Pending before the court is a motion for default judgment filed

by Government Employees Insurance Company, GEICO Indem-

nity Company, GEICO General Insurance Company, and GEICO

Casualty Company (collectively, “GEICO” or “Plaintiffs”), against

Defendants Marie Lourdes Jean-Francois, N.P., Dorrett Bryan,

N.P., Priscilla Rose Santana, N.P., Shernet Barrett, N.P., and Bar-

bara Kerr, N.P. (collectively the “Defaulting Defendants”),

brought pursuant to Rule 55(b)(2) of the Federal Rules of Civil

Procedure. (See Not. of Mot. (Dkt. 161); Mem. in Supp. of Mot.

(Dkt. 161-10).) The court referred this motion to Magistrate

Judge Peggy Kuo for a report and recommendation (“R&R”). (See

June 29, 2023 Order Referring Mot.) Judge Kuo issued the an-

nexed R&R on March 14, 2024, recommending that the court

grant Plaintiffs’ motion and award GEICO damages and prejudg-

ment interest. (R&R (Dkt. 165) at 13.)

No party has objected to Judge Kuo’s R&R, and the time to do so

has passed. See Fed. R. of Civ. P. 72(b)(2). Therefore, the court

reviews the R&R for clear error. See Velasquez v. Metro Fuel Oil

Corp., 12 F. Supp. 3d 387, 397 (E.D.N.Y. 2014). Having found

none, the court ADOPTS the R&R in full.

The court therefore GRANTS Plaintiffs motion for default judg-

ment, finding that GEICO is not obligated to pay any outstanding

claims submitted by the Defaulting Defendants. The court also

awards GEICO damages in the amount of $112,258.59 and pre-

judgment interest as specified in the annexed R&R. (See R&R at

11-13.)

SO ORDERED.

Dated: Brooklyn, New York

April 4 , 2024

s/NICHOLAS G, GARAUVFIS

NICHOLAS G. GARAUFIS

nited States District Judge

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

en nennennecenennns &

GOVERNMENT EMPLOYEES INSURANCE :

COMPANY, GEICO INDEMNITY :

COMPANY, GEICO GENERAL INSURANCE :

COMPANY, and GEICO CASUALTY

COMPANY, : REPORT AND

: RECOMMENDATION

Plaintiffs, :

: 22-CV-01553 (NGG) PK)

~agains t- :

LIANA BINNS, N_P., et al,

Detendants.

eee eee mnenene X

Peggy Kuo, United States Magistrate Judge:

Government Employees Insurance Company, GEICO Indemnity Company, GEICO

General Insurance Company, and GEICO Casualty Company (collectively, “GEICO” or “Plaintiffs”

brought this action seeking to recover nearly $1 million for allegedly fraudulent no-fault insurance

claims billed by Defendants to GEICO for medical services provided to victims of automobile

accidents. (See Compl, Dkt. 1.) The Complaint alleges 139 causes of action for common law fraud,

unjust enrichment, and civil RICO and civil RICO conspiracy to commit fraud.

GEICO has moved for default judgment against Defendants Marie Lourdes Jean-Francois,

N.P. (“Jean-Francois”), Dorrett Bryan, N.P. (“Bryan”), Priscilla Rose Santana, N.P. (“Santana”),

Shernet Barrett, N.P. (“Barrett”), and Barbara Kerr, N.P. (“Kerr”) (collectively the “Defaulting

Defendants”) pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure. (“Motion,” Dkt.

161.) ‘The Honorable Nicholas G. Garaufis referred the Motion to me for a report and

recommendation. For the reasons stated herein, I respectfully recommend that the Motion be granted.

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual Background

The following facts are taken from the Complaint (Dkt.-1), Plaintiffs Memorandum in

Support of Application for Default Judgment (Pl. Mem.,” Dkt. 161-10), and the Declarations of

Joshua D. Smith (“Smith Decl.” Dkt. 161-1; “Second Smith Decl.,” Dkt. 164) and Kathleen Asmus

(“Asmus Decl.,” Dkt. 161-3), and are accepted as true for purposes of the Motion. See Finkel v.

Romanowiex, 577 F.3d 79, 84 2d Cir. 2009) (in light of a defendant’s default, a court is required to

accept all of plaintiff's factual allepations as true and draw all reasonable inferences in its favor).

A, Nature of the Case

New York’s Comprehenstve Automobile Insurance Reparations Act, N.Y. Ins. Law §§ 5101

ef seq. {the “No-Fault law”), requires no-fault insurers, like GEICO, to reimburse patients for up to

$50,000 in personal injury benefits without proof of fault of the other driver. N.Y. Ins. Law §§ 5102,

5103. Insured patients may assign claims for benefits to theit healthcare provider to directly submit

requests for payment to the insurance company. 11 N.Y.C.R.R. § 65-3.11(@). To qualify for

reimbursement payments under the No-Fault law, a healthcare provider must comply with all

applicable licensing requirements for performing covered services. Id. § 65-3.16(a)(12). New York

law prohibits, zafer alia, the ownership or control of a medical practice by unlicensed individuals, fee-

splitting arrangements among licensed and unlicensed individuals for the provision of professional

services, and the payment or solicitation of kickbacks in exchange for patient referrals. See Gov't Hmps.

Ins. Co. » Efmood Park Med. Grp., P.C., No. 21-CV-617 (FB)(RER), 2022 WL 772737, at *2 (E.D.N.Y.

Feb. 23, 2022), Re*R adopted, 2022 WL 768360 (E.D.N.Y. Mar. 14, 2022) (citing N.Y. Educ. Law §§

6509-a, 6512, 6530(11), 6530(18), 6530(19), 6531); Gov't Bumps. Ins. Co. ». Parkway Med. Care, P.C., No.

15-CV-3670 (FB)(VMS), 2017. WL.1133282, at *2 (E.D.N.Y. Feb. 21, 2017), R&*R adopted, 2017 WL

1131901 (E.D.N-Y. Mar. 24, 2017).

Beginning in 2019, Defendants engaged in a scheme in which they submitted thousands of

fraudulent no-fault insurance clairms to GEICO relating to “medically unnecessary, illusory, and

otherwise non-reimbursable healthcare services” allegedly provided to automobile accident victims in

New York (the “Fraudulent Services”), (Compl. { 1; Pl Mem. 3-5; Smith Decl. 16.) Defendants

are (1) unincorporated medical practices, (2) licensed healthcare professionals who falsely purported

to own and control the medical practices, and (3) non-healthcare professionals who unlawfully owned

and controlled the medical practices. (Compl. {/ 4.)

GEICO alleges that the insurance claims submitted by Defendants were ineligible for

reimbursement because they were based on setvices that were not medically necessary, were never

provided in the first instance, ot were exaggerated for the purpose of inflating the charges submitted

to GEICO for reimbursement, é¢., the Fraudulent Services. Ud J 3.) GEICO also alleges that the

healthcare practices through which these insurance claims were billed wete not owned by licensed

healthcate professionals but were instead owned of controlled by unlicensed individuals and entities.

Ud. $f, 2-3.) Moreover, these healthcare practices were allegedly engaged in illegal fee-splitting with

non-medical professionals and illegal referral arrangements in which kickbacks were paid for patient

teferrals. (id 3.) Thus, GEICO allepes these healthcare practices were ineligible for no-fault

reimbursement payments from GEICO under the No-Fault law. (Ud) See also N.Y. Ins. Law §

5102(a)(1); 11 NYCRR § 65-3.16(a) (12).

B. The Defaulting Defendants

Defaulting Defendants Jean-Francois, Bryan, Santana, Barrett, and Kerr are five licensed nurse

practitioners who reside in and are citizens of New York. (Compl. ff 44, 52, 54, 68, 74.)

The Defaulting Defendants each falsely purported to own and control an unincorporated

healthcate practice (Jean-Francois Medical, Bryan Medical, Santana Medical, Barrett Medical, and Kerr

Medical, respectively) that was in actuality owned and controlled by unlicensed non-healthcare

professionals. (Jd. ff] 44-45, 52-55, 68-69, 74-75.) These medical practices were, thus, fraudulently

licensed. (id §] 4.) Through these fraudulently licensed medical practices, Defaulting Defendants

purported to provide many of the Fraudulent Services and knowingly submitted fraudulent claims for

these services to GEICO. (Ud. ff] 3, 5, 44, 52, 54, 68, 74.)

GEICO submitted a “Claim Run” identifying all of the claims submitted to GEICO by

Defaulting Defendants. (Ex. 2 to Asmus Decl, Dkt>161-5.) GEICO alleges that it reimbursed

Defaulting Defendants at least $112,258.59 for fraudulent claims, (Smith Decl. 26.) In support of

this amount, GEICO submitted a Tax Identification Run (“TIN Run”) identifying all of the payments

which GEICO issued to the Defaulting Defendants. (Ex. A to Second Smith Decl., Dkt. 164-1.) Of

the claims GEICO has not yet paid, GEICO alleges at least $136,765.47 of payments ate currently in

legal dispute. (Smith Decl. J 27.) In support of this amount, GEICO submitted a “Litigation and

Arbitration Run” identifying all pending litigations and arbitrations filed against GEICO by Defaulting

Defendants seeking payment. (Asmus Decl. 4] 11; Ex. 3 to Asmus Decl., Dkt. 161-6.)

II. Procedural Background

GEICO filed the Complaint on March 21, 2022. (Dkt. 1.) Proof of service of a summons

and the Complaint was filed with respect to each of the Defaulting Defendants. (kts. 28-30, 79,

112.) None of the Defaulting Defendants answered or appeared in the case. Upon GEICO’s request,

the Clerk of the Court entered Certificates of Default as to each of the Defaulting Defendants. (Dkts.

66, 71, 73, 105, and 121.) Certificates of Default for Kerr, Santana, and Jean-Francois were entered

on May 24, 2022. (Dkts, 66,71, 73.) A Certificate of Default for Bryan was entered on June 14, 2022.

(Dkt. 105.) A Certificate of Default for Barrett was entered on July 18, 2022. (Dkt. 121.) GEICO

filed its first motion for default jadgment on August 4, 2022. (Die.-125,)

1’The TIN Run initially fled by GEICO, attached to the Asmus Declaration as Exhibit 1 (Dkt.- 161-4),

contained incomplete data, (Second Smith Decl. 4.) ‘The Court accordingly relies on the updated 'TIN Run

filed as Exhibit A to the Second Smith Declaration. (Sze Dkt. 164-1.)

On August 17, 2022, Mark Furman, Esq. filed a notice of appearance on behalf of Defaulting

Defendants Jean-Francois, Bryan, Barrett, and Kerr. (Dkts. 126-127.) No notice of appearance was

evet filed on behalf of Defaulting Defendant Santana.

The Court was notified on January 17, 2023 that Mr. Furman, unfortunately, had passed away.

(Dkt. 144.) In response, the Court scheduled a status conference for March 3, 2023 and directed

GEICO to send a copy of the Court’s scheduling order to Mr. Furman’s former clients so that those

clients would be aware of the conference. (January 18, 2023 Minute Entry; Dkt. 145.) Notices of

appearances were thereafter filed on behalf of various of Mr. Furman’s former clients, but no new

attorney entered any notices of appearances on behalf of the Defaulting Defendants. (Dkts. 146, 149.)

The Court scheduled another status conference for April 14, 2023. (March 3, 2023 Minute

Entry.) GEICO mailed a copy of the Court’s scheduling order to all non-appearing Defendants,

including the Defaulting Defendants. (Dkt. 150.) At that status conference, the parties updated the

Court on their efforts to contact non-appearing Defendants formerly represented by Mr. Furman and

confirmed that defense counsel had been provided with the last known contact information for all

such Defendants. (April 14, 2023 Minute Entry.) The Court directed the parties to “continue to

diligently attempt to contact ali previously represented Defendants, including at their places of

tesidence” and granted GEICO permission to file a motion for default judgment against any

Defendants remaining in default as of May 12, 2023. Ud.) Although notices of appearance were filed

on behalf of three additional defendants formerly represented by Mr. Furman, no notices of

appearance were filed on behalf of the Defaulting Defendants. (Dkt. 152.) The Defaulting

Defendants did not file any answer or responsive pleading or motion.

After settling with or voluntarily dismissing claims against various appearing Defendants,

GEICO withdrew its pending motion for default judgment (Dkt. 157), and on June 28, 2023, filed the

Motion, seeking default judgment against the Defaulting Defendants. (Dkt. 161.) GEICO seeks: (1)

a declaration, pursuant to 28 U.S.C: §§ 2201 and 2202, that they ate not obligated to pay the Defaulting

Defendants any of the pending bills for outstanding claims submitted to GEICO (First Cause of

Action); (2) default padgments as to the common law fraud and unjust enrichment claims against the

Defaulting Defendants (the Seventy-Second, Seventy-Third, Eighty-Eighth, Eighty-Ninth, Ninety-

Second, Ninety-Thitd, One Hundred Twentieth, One Hundred Twenty-First, One Hundred Thitty-

Second, and One Hundred Thirty-Third Causes of Action); and (3) damages and prejudgment interest

on the common law fraud and unjust enrichment claitns. GEICO does not seek default judgments

against the Defaulting Defendants with respect to the civil RICO claims or civil RICO conspiracy

claims brought pursuant to 18 U.S.C. §§ 1962(c) and (d).

DISCUSSION

I. Default Judgment Standard

Rule 55 of the Federal Rules of Civil Procedure prescribes a two-step process for entry of a

default judgment. First, when a defendant “has failed to plead or otherwise defend,” the Clerk of

Coutt enters the defendant’s default. Fed. R. Civ. P.55(a). The plaintiff may then move the court for

an entry of default judgment. Fed. R. Civ. P.55(b)(2). “[J]Just because a patty is in default, the plaintiff

is not entitled to a default judgment as a matter of right.” GuideOue Specialty Mut. Ins. Co. », Rock Cnety,

Church, Inc, 696 F. Supp. 2d 203, 208 (E.D.N.Y. 2010). The plaintiff must demonstrate proper service

of the summons and complaint. See ldvanced Capital Commercial Group, Ine. v. Suarez, No. 09-CV-5558

(DRH)(GRB), 2013 WL 5329254, at *2 (E.D.N.Y. Sept. 20, 2013). The plaintiff must also establish

complance with the procedural requirements of Local Civil Rules 7.1 and 55.2.

The court must determine whether Plaintiffs’ “allegations establish [the defendant’s] liability

as a matter of law.” Finkel, 577 F.3d at 84. “[A] party’s default is deemed to constitute a concession

of all well pleaded allegations of liability.” Greyhound Exchibitgroup, Inc. v. EL.ULL. Realty Corp., 973

F.2d 155, 158 (2d Cir. 1992). In considering a motion for default jadgment, a court accepts a plaintifPs

“factual allegations as true and draw[s] all reasonable inferences in [the plaintiffs] favor.” Finkel, 577

at 84. However, a default is “not considered an admission of damages.” Greyhound, 973 F.2d at

158. “The plaintiff bears the burden of presenting proof of damages, which may take the form of

documentary evidence or detailed affidavits.” foe Hand Promotions, Inc. v. Benitez, No. 18-CV-6476

(ARR)(PK), 2020 WL 5519200, at *3 (E.D.N.Y. Aug. 27, 2020), RePR adopted, 2020 WL 5517240

(E.D.N.Y. Sept. 14, 2020).

A court “possesses significant discretion” in granting a motion for default judgment,

“including [determining] whether the grounds for default are clearly established...” Kéderis ». Trattoria

El Greca, No, 10-CV-4288 (JBW)(CLP), 2011 WL 7114003, at #2 (E.D.NLY. Sept. 23, 2011), Re>R

adopted, 2012 WL 273078 (E.D.N_Y. Jan. 30, 2012).

I. Jurisdiction

A, Subject Matter Jurisdiction

Plaintiffs are Nebraska corporations with their principal place of business in Maryland, and all

Defaulting Defendants are citizens of New York. (Compl. ff 10, 44, 52, 54, 68 74.) The matter in

controversy exceeds $75,000. dd. The Court accordingly has diversity jurisdiction over Plaintiffs’

claims pursuant to 28 U.S.C.:§ 1332(a) and supplemental jurisdiction over Plaintiffs’ state law claims

under 28 U.S.C. § 1367.

B. Personal Jurisdiction and Service on Detendants

“{Slerving a summons .., establishes personal jutisdiction over a defendant ... who is subject

to the jurisdiction of a court of general jurisdiction in the state where the district court is located.”

Licei exe re Licei v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 59 (2d Cir. 2012) (quoting Fed. R. Civ.

4()(1)(A).) New York State has general jurisdiction over its residents. See Brown » Lackbeed Martin

Carp., 814 F.3d 619, 622 n.1 (2d Cir. 2016).

All Defaulting Defendants are residents of New York. Plaintiffs properly served the Summons

and Complaint on each of the Defaulting Defendants by leaving a copy of the Summons and

Complaint with a person of suitable age and discretion at their homes and then mailing a copy to their

last known addresses. (Dkts. 28, 29, 30,79, 112.) See Fed: R. Civ. P. d(e); N-Y.C.P.LR. § 308(2).

‘The Court’s personal furisdiction over the Defaulting Defendants 1s, therefore, established.

IiI. Procedural Compliance with Local Civil Rules 7.1 and 55.2

Plaintiffs filed the following in support of the Motion as required by the Local Civil Rules:

Notice of Motion (Dkt. 161); a memorandum of law in support of the Motion (Dkt. 161-10); a

proposed default judgment order (Dkt. 161-8); and proof of mailing the Motion papers to Defendants.

(Dkt. 161-1 at 8.) Plaintiffs have also affirmed that the Defaulting Defendants are not infants, in the

military, or incompetent persons. (Dkts. 161-2.) Thus, compliance with the Local Civil Rules is

satisfied.

IV. Liability

A, Common Law Fraud Claims

GEICO alleges common law fraud against each of the Defaulting Defendants. “To state a

claim for fraud under New York law, a plainuff must allege (1) a material misrepresentation or

omission of fact; (2) which the defendant knew to be false; (3) which the defendant made with the

intent to defraud; (4) upon which the plaintiff reasonably relied; and (5) which caused injury to the

plaintiff.” Parkway, 2017 WL 1133282, at *7 (citing Fix, Guar. Ins. Co. ». Putnam Advisory Co., 7183 F.3d

395, 402 (2d Cir. 2015).

GEICO has alleged that each of the Defaulting Defendants knowingly submitted fraudulent

claims to GEICO for the Fraudulent Services that they purportedly provided through medical

practices that they falsely purported to own and control. (Compl. Jf 5, 4445, 52-53, 54-55, 68-69,

74-75, 286-287.) The Complaint alleges that, in their claims to GEICO for the Fraudulent Services,

the Defaulting Defendants knowingly misrepresented that the billed-for-services were medically

necessary and that their medical practices were properly licensed and eligible to receive no-fault

benefits. (fd. 4] 785, 893, 920, 1109, 1190.) GEICO alleges that the Defaulting Defendants submitted

the fraudulent claims and provided the Fraudulent Services with the intent “solely to financially enrich

the Defendants, rather than to treat or otherwise benefit the [ijinsureds who putportedly were

subjected to them.” (Ud. | 5.) GEICO alleges that it reasonably relied on the fraudulent billing

submitted by the Defaulting Defendants and could not have reasonably discovered the scheme due

to its financial complexity and affirmative steps taken by the Defendants to conceal the scheme. (Id.

288-299.) Finally, GEICO has calculated that it has been injuted in the amount of $112,258.59 in

payments made to the Defaulting Defendants to which they are not entitled. (Smith Decl. {] 26.)

I find that GEICO’s allegations are sufficient to establish common law fraud, (See PL Mem.

at 10-11 (collecting similar cases).) See also Parkway, 2017 WL 1133282, at *7 (collecting cases).

B. Unjust Hatichment Claims

To prevail on a claim of unjust enrichment, a plaintiff must “establish: (1) that the defendant

benefitted, (2) at the plaintiff's expense; and (3) that equity and good conscience requite restitution.”

Td. (citing Kaye ». Grossman, 202 F.3d 611; 616 (2d Cir. 2000).

GEICO alleges that the Defaulting Defendants benefited, in the amount of $112,258.59, at

GEICO’s expense. (Smith Decl. | 26; TIN Run.) As described above, Defaulting Defendants

submitted fraudulent bills seeking reimbursement to which they knew they were not entitled, and

GEICO telied on the “faciaily-valid documents” and paid the bills promptly. (Compl. {[ 298.) Because

Defaulting Defendants were not entitled to that payment, GEICO has adequately pled that the

payment was at its expense. See Parkway, 2017 WL 1133282, at *8 (collecting cases).

Equity and good conscience also require compensation because Defaulting Defendants

recetved $112,258.59 in reimbursements from GEICO as a result of the fraudulent scheme, and “there

is no discernable reason why [Defaulting Defendants] should be rewarded for [their] fraud by being

permitted to retain that windfall.” Id.

Cc. Declaratory Judgment

The Motion seeks entry of a declaratory judginent against Defaulting Defendants, pursuant to

28 U.S.C. §§ 2201 and 2202, which declares that GEICO has no obligation to make, and the Defaulting

Defendants have no tight to receive, payment for any claims submitted to GEICO that are still

pending, because of fraudulent representations made in those claims. A court may exercise its

discretion to issue a declaratory judgment in cases where the patty secking the declaratory judgment

can demonstrate the existence of an actual case or controversy. “Declaratory relief is appropriate (1)

where the judgment will serve a useful purpose in clarifying and settling the legal relations in issue, ot

when it will terminate and afford relief from the uncertainty, insecurity and controversy giving tise

to the proceedings.” Parkway, 2017 WL 1133282, at *9. “Courts within this district have, on numerous

occasions, found these requirements met in actions by insurers seeking declaratory judgments

regarding obligations relating to allegedly fraudulent claims.” Id.

GEICO has established that an actual controversy exists and that a declaratory judgment

would afford specific and conclusive relief with regard to claims submitted by the Defaulting

Defendants which are still pending payment. GEICO has submitted a Litigation and Arbitration Run

reflecting claims currently pending civil court collections litigation and New York State arbitrations

initiated by or on behalf of the Defaulting Defendants against GEICO based on the Fraudulent

Services. (Asmus Decl. ] 7; Litigation and Arbitradon Run.) The Litigation and Arbitration Run

indicates that the total amount of outstanding claims in dispute is at least $136,765.47. (Smith Decl.

4] 27; Asmus Decl. J 12; Litigation and Arbitration Run.)

GEICO has adequately alleged that these pending claims are fraudulent for the reasons stated

above, Accordingly, GEICO has established that there is an actual controversy for which a declaratory

10

judgment would afford specific relief. (See Pl. Mem, at 9 (collecting cases)).

Accordingly, I respecttully recommend that the Court enter a declaratory judgment that

GEICO is not obligated to pay any outstanding clauns submutted by the Defaulting Defendants.

Vv. Damages

Allegations related to damages are not deemed admitted upon entry of a default judgment.

Cement ¢ Concrete Workers Dist. Connal Welfare Fund, Pension Pund, Annuity Fund, Edne, Training Fund

Other Funds v. Metre Found. Contractors Inc, 699 F.3d 230, 234 (2d Civ. 2012), “The plaintiff bears

the burden of presenting proof of damages, which may take the form of documentary evidence or

detailed affidavits.” foe Hand, 2020 WL 5519200, at *3.

A. Common Law Damages

GEICO seeks reimbursement of the amounts that it has paid to Defaulting Defendants in

connection with the fraudulent claims submitted by them. The TIN Run submitted by GEICO shows

each payment GEICO made to Defaulting Defendants from Augnst 5, 2019 to July 22, 2022. The

TIN Run indicates that GEICO paid a total of $112,258.59 to the Defaulting Defendants as follows:

Accordingly, I respectfully recommend that GEICO be awarded $112,258.59 in damages

based on their common Jaw fraud and unjust enrichment claums against Defaulting Defendants.

B. Prejudgment Interest

GEICO also seeks prejudgment interest. Under New York law, an award of pre-judgment

interest on damages awarded for fraud is mandatory. See N-Y.C.P.L.R. § 5001; Manajacturers Hanover

Tr. Co. v. Drysdale See. Corp., 801 F.2d 13, 28 (2d Cir. 1986); Parkway, 2017 WL 1133282, at *17,

Prejadgment interest in New York accmes at the statntosy rate of nine percent per year.

NY.C.P.LR. § 5004. “Where,..damages were incurred at various times, interest shall be computed

tpon each item from the date it was incurred or upon all of the damages from a single reasonable

intermediate date.” Id. § 500Lfb). Courts have “wide discretion in determining a reasonable date from

which to award pre-judgment interest.” Cowmay v. Ieabu ce» Co, 16 F.3d 504, 512 Qd Ci. 1994).

GEICO’s proposed prejadgment interest calculations are set forth at Exhibit C to the Smith

Declaration. (Dkt. 161-7.) For each Detanlting Defendant, GEICO calculates prejadgment mterest

at an annual rate of 9% beginning from January 1 of the year following the year during which GEICO

paid out the fraudulent claims. This methodology has been followed in this district in other no-fault

insurance fraud cases awarding damages on default judgment. See, ¢g., Parkway, 2017 WL 1133282, at

I find that using January | following the year in which GEICO incurred damages as the start

date fox awarding prejudgment interest on those damages is a ceasonable approach. The applicable

interest rates for each Defaniting Defendant are accordingly set forth in the following table:

~Detaulting | Total _ | Claims Paid | Year Claims | □□□ isting Pee. |

pefendany | Cltims Paid | by GEICO | Were Paid by | "7G | Interest

eee by GEICO) by Year | GEICO: □□ vee | Rate

ce PR ee Pe os Interests

Jean-Francois $20,365.91 $13,504.51 2020 anuary 1, 2021

$6,861.40 anuary 1, 2022 | $1.69

Bryan $54,073.26 $29,957.61 2021 amuary 1, 20 $

$24,115.65 amary 2023 | $5.95

$3,334.70 | $3,334.70 2019 anwary 2020 | $0.82

Barrett §27,856,65 $8,399 34 2021 anuary 1, 2022 5

$19,457.31 2032 January 1, 7023 $4.86

$6,628.07 | $6,628.07 2022 anwary 1, 2023

12

Accordingly, I respectfully recommend that GEICO recover prejudgment interest at the daily

rates set forth above.

CONCLUSION

Based on the foregoing, I respectfully recommend that the Motion be granted and that

damages and prejudgment interest be awarded to GEICO as follows:

e Against Defendant Jean-Francois, $20,365.91 in damages plus $3.33 daily interest from

January 1, 2021 through judgment and $1.69 daily interest from January 1, 2022 through

judgment;

e¢ Against Defendant Bryan, $54,073.26 in damages plus $7.39 daily interest from January 1,

2022 through judgment and $5.95 daily interest from January 1, 2023 through judgment;

¢ Against Defendant Santana, $3,334.70 in damages plus $0.82 daily interest from January

1, 2020 through judgment;

¢ Against Defendant Batrett, $27,856.65 in damages plus $2.07 daily interest from January

1, 2022 through judgment and $4.80 daily interest from January 1, 2023 through judgment;

¢ Against Defendant Kerr, $6,628.07 in damages plus $1.63 daily interest from January 1,

2023 through judgment.

Any wtitten objections to this Report and Recommendation must be filed within 14 days of

service of this report. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Failure to file objections within

the specified time waives the right to appeal any order or judgment entered based on this Report and

Recommendation. Cader v. Onondaga Cty., 517 F.3d 601, 604 (2d Cir. 2008).

Peggy Kuo

PEGGY KUO

United States Magistrate Judge

Dated: Brooklyn, New York

March 14, 2024

13

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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