Jaber

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

JAMAL JABER,

Plaintiff, DECISION AND ORDER

25-CV-0782-MAV

-vs-

CHRISTIAN McGOWAN,

Defendant.

Plaintiff Jamal Jaber commenced this action on August 25, 2025, seeking

$1,500,000 for injuries he sustained when he was struck by the moving propeller of a

boat owned by the Defendant. ECF No. 1. After Defendant failed to answer or

otherwise respond to the complaint, Plaintiff obtained an entry of default in

December 2025. ECF No. 5. Now before the Court is Plaintiffs application for a

default judgment. ECF No. 6. For the reasons stated below, Plaintiffs motion is

eranted.

BACKGROUND

On July 27, 2024, Plaintiff was struck by the moving propeller of Defendant’s

boat on Chautauqua Lake, which is located entirely within Chautauqua County, New

York. ECF No. 1 § 8. The accident occurred “wholly and solely” as a result of the

careless and negligent operation of the boat, which was being operated with the

express or implied permission of Defendant. Jd. 11-18. Plaintiff suffered injuries

that were severe and permanent, and have caused and will continue to cause pain

and suffering. Id. § 14.

Plaintiff filed the complaint in this action on August 25, 2025. ECF No. 1.

Summons was issued on August 26, 2025, and Plaintiff filed a certificate of service

affirming that Defendant was personally served on October 20, 2025. ECF Nos. 2-3.

On December 4, 2025, Plaintiff requested an entry of default from the Clerk of Court,

and an entry of default was docketed on December 5, 2025. ECF Nos. 4—5. The Clerk’s

Office mailed the entry of default to Defendant. ECF No. 5.

On December 23, 2025, Plaintiff filed the motion for default judgment which is

presently before the Court. ECF No. 6. In April 2026, the Court issued an order

scheduling oral argument on the motion for May 28, 2026, and directed Plaintiff to

serve Defendant with the order. ECF No. 7. Plaintiff filed an affidavit on May 5, 2026

indicating that Defendant had been personally served with the order on April 27,

2026. ECF No. 8. The Court held oral argument on the motion on May 28, 2026 as

originally scheduled, but only Plaintiff appeared. ECF No. 9. Defendant has yet to

appear in this case.

DISCUSSION

A clerk’s entry of default does not lead to default judgment as a matter of right.

Shah v. N.Y. State Department of Civil Services, 168 F.3d 610, 615 (2d Cir. 1999) (internal

quotations omitted). Rather, “[w]hen the party against whom the default or default

judgment is entered is a pro se litigant, an additional consideration is at play, namely, a

concern about the ability of pro se litigants to protect their rights.” Miller v. Cnty. of Erie,

No. 17-CV-00928W(F), 2019 WL 1244196, at *3 (W.D.N.Y. Feb. 27, 2019), report and

recommendation adopted, No. 1:17-CV-00928 EAW, 2019 WL 1243680 (W.D.N.Y. Mar. 18,

2019) (quoting Roberts v. Keith, 2007 WL 2712853, at * 2 (S.D.N.Y. Sept. 18, 2007); Enron

Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993)). Further, “[b]efore entering a default

judgment, the court must ensure that (1) jurisdictional requirements are satisfied, (2) the

plaintiff took all required procedural steps in moving for a default judgment, and (3) the

plaintiffs allegations establish the defendant’s liability as a matter of law.” Wilmington

Sav. Fund Soc’y, FSB as trustee of Aspen Holdings Tr. v. Fernandez, 712 F. Supp. 3d 324,

330 (E.D.N.Y. 2024) (citation omitted). Lastly, “[t]here must be an evidentiary basis for the

damages sought by plaintiff... .” Cement & Concrete Workers Dist. Council Welfare Fund

v. Metro Found. Contractors, Inc., 699 F.3d 230, 234 (2d Cir. 2012) (citations omitted).

Here, Plaintiff has adequately demonstrated that there is no “good cause” for setting

aside the entry of default against the pro se Defendant, that the Court has jurisdiction,

that he took all required procedural steps in moving for a default judgment, that his

allegations establish Defendant’s liability as a matter of law, and that there is an adequate

evidentiary basis for the damages requested. Accordingly, Plaintiffs motion for default

judgment is granted.

A. “Good Cause”

As no attorney has appeared on Defendant’s behalf in this action, the Court must

consider the pro se Defendant’s ability to protect his rights, and whether there is “good

cause” under Fed. R. Civ. P. 55(c) for setting aside the entry of default. Miller, 2019 WL

1244196 at *3. In making such determination, courts consider three factors: (1) willfulness

on the part of the defaulting party, (2) prejudice to the adversary, and (8) the presentation

of a meritorious defense. Jd. (citing Weitsman v. Levesque, 2018 WL 1990218, at * 2

(N.D.N.Y. Apr. 25, 2018); Niepoth v. Montgomery Cty. Dist. Attorney’s Office, 177 F.R.D.

111, 112 (N.D.N.Y. 1998)).

In the context of default, “willfulness” refers to the defaulting party’s conduct “that

is more than merely negligent or careless.” S.E.C. v. McNulty, 137 F.3d 732, 738 (2d Cir.

1998). Here, Plaintiff has submitted a certificate of service indicating the Summons and

Complaint were personally served on Defendant on October 20, 2025 (ECF No. 3), the

docket indicates the Clerk mailed Defendant the entry of default on December 5, 2025

(ECF No. 5), and Plaintiff filed an affidavit of service indicating the text order scheduling

oral argument was personally served on Defendant on April 27, 2026 (ECF No. 8).

Nevertheless, to date Defendant has neither appeared in this action nor offered any

explanation for failing to appear. The willfulness factor thus weighs in favor of a default

judgment. Miller, 2019 WL 1244196 at *3.

Next, prejudice to the plaintiff in the default judgment context concerns “the loss of

evidence, increased difficulties of discovery, or greater opportunity for fraud and collusion

— circumstances that make it more difficult for plaintiff to prosecute its case.” Id. (quoting

Roberts, 2007 WL 2712858, at *5 (contrasting prejudice with “inconvenience and

aggravation”)). Here, the complete failure of Defendant to appear in this action renders

Plaintiff unable to engage in any discovery with him. Accordingly, the second factor also

supports a default judgment.

Lastly, with respect to the presentation of a meritorious defense, the Second Circuit

has instructed that in considering whether a meritorious defense is presented, courts

should determine whether such defense would “if proven at trial present a complete

defense.” Diakuhara, 10 F.3d at 98. Again, here, the complete failure of Defendant to

appear or file an answer presenting any defense to Plaintiffs claims against him, can only

be construed as indicating Defendant has no defense which, if proven at trial, would

require Defendant’s exoneration on the claims pending against him. Accordingly, the third

factor also weighs in favor of a default judgment against pro se Defendant.

With all three factors in favor of Plaintiff, Plaintiff has demonstrated that there is

no “good cause” for setting aside the entry of default, or declining to award default

judgment. Fed. R. Civ. P. 55(c).

B. Jurisdiction

The complaint in the instant case alleges that the Court has “diversity jurisdiction”

under 28 U.S.C. § 1832(a)(1), “in that the claims asserted [t]herein are between citizens of

different states and the amount in controversy exceeds the sum or value of $75,000,

exclusive of interests and costs.” ECF No. 1 4 2.

“I]t is well established that [t]he party seeking to invoke jurisdiction under 28

U.S.C. § 1332 bears the burden of demonstrating that the grounds for diversity exist and

that diversity is complete.” Van Wade v. Nitti, 720 F. Supp. 3d 219, 229 (W.D.N.Y. 2024)

(citing Herrick Co., Inc. v. SCS Commens, Inc., 251 F.8d 315, 322-23 (2d Cir. 2001)).

Plaintiff has done so here. He alleges that he is a citizen and resident of Florida, while

Defendant is a citizen and resident of New York. ECF No. 1 4-5. Moreover, he seeks

damages of $1,500,000, exclusive of interest and costs. ECF No. 1 at 3. Accordingly, the

Court finds that it has jurisdiction in this matter.

C. Procedural Steps

Default judgment is governed by a two-step process established in Rule 55 of the

Federal Rules of Civil Procedure (“Fed. R. Civ. P.”). See Fed. R. Civ. P. 55; Priestly v.

Headminder, Inc., 647 F.3d 497, 504-05 (2d Cir. 2011). The first step of the process

requires the moving party to obtain a certificate of default from the Clerk of the Court.

Fed. R. Civ. P. 55(a). Once the certificate of default is issued, the moving party may move

to the second step of the process: an application for entry of a default judgment. Fed. R.

Civ. P. 55(b).

Here, as discussed above, Plaintiff has followed the proper two-step process. He

obtained an entry of default on December 5, 2025. ECF No. 5. Only after obtaining the

entry of default did he move to the second step: filing the instant motion for default

judgment. ECF No. 6.

D. Liability as a Matter of Law

Plaintiffs complaint alleges Defendant is liable and responsible for his injuries

pursuant to the provisions of New York Navigation Law § 48. ECF No. 1 9 15. N.Y. Nav.

Law § 48(1) provides, in pertinent part, that

Every owner of a vessel used or operated upon the navigable waters of the

state .... shall be liable and responsible for death or injuries to person or

property resulting from negligence in the use or operation of such vessel. . .

by any person using or operating the same with the permission, express or

implied, of such owner....

N.Y. Nav. Law § 48.

“An allegation — other than one relating to the amount of damages — is

admitted if a responsive pleading is required and the allegation is not denied.” Fed.

R. Civ. P. 8(b)(6). Where a default occurs, the well-pleaded factual allegations set

forth in a complaint relating to liability are deemed true. See Greyhound

Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 9738 F.2d 155, 158 (2d Cir. 1992).

Therefore, in considering whether to enter default judgment, a court must

determine whether the complaint contains sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its face.” Sky Vapors, LLC v.

Blazynski, 2018 WL 6696995, at * 2 (W.D.N.Y. Dec. 20, 2018) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). That is, the Court must consider

whether the well-pleaded allegations can survive a motion to dismiss under Fed. R.

Civ. P. 12(b)(6).

Here, Plaintiff alleges that Defendant was the owner of a vessel operated on

Chautauqua Lake. ECF No. 1 4§ 7-8. He further alleges that Chautauqua Lake

consists of navigable waters located entirely within the State of New York, but that

the waters are incapable of being used as an interstate highway for commercial

trade or travel and is therefore non-navigable for purposes of establishing federal

admiralty jurisdiction. Jd. 4] 9-10. Finally, he alleges that he was seriously injured

due to the careless and negligent operation of Defendant’s vessel by a person whom

Defendant had given express or implied permission to operate that vessel. Id. |

11-18. The Court finds these allegations are sufficient to state a claim for relief that

is plausible on its face, and therefore establishes Defendant’s liability as a matter of

law.

E. Damages

Plaintiff seeks damages in the amount of $1,500,000 for his past and future pain

and suffering. As one district court within this Circuit has aptly summarized:

In New York, the term “pain and suffering” encompasses all items of general,

non-pecuniary damages and includes the physical and emotional

consequences of an injury. It also includes the loss of enjoyment of life which

compensates for the frustration and anguish caused by the inability to

participate in activities that once brought pleasure. The necessity of further

surgery may exacerbate pain and suffering, while pain medication may

alleviate it.

Furthermore, damages for past and future pain and suffering must be

distinguished. Past pain and suffering refers to damages from the date of the

accident through trial, while future pain and suffering refers to damages that

will reasonably occur thereafter. When considering future pain and suffering,

such damages must be reasonably certain, but there is no requirement that

they be permanent.

Furey v. U.S., 458 F. Supp. 2d 48, 56 (N.D.N.Y. 2006) Gnternal citations and quotation

marks omitted).

“When determining the appropriate amount of damages for pain and suffering, [the

Court] is bound by a standard of reasonableness.” McAdams v. U.S., 04-CV-6541, 2006

WL 1738028, at *8 (S.D.N.Y. June 22, 2006) (quoting Mastrantuono v. U.S., 163 F. Supp.

2d 244, 258 (S.D.N.Y. 2001)). “Accordingly, courts look to awards in similar cases when

determining appropriate damages for a plaintiffs pain and suffering.” Oncay v. Inflasafe

USA, Inc., No. 819CV1428GTSCFH, 2021 WL 6202686, at *38 (N.D.N.Y. Oct. 20, 2021)

(collecting cases).

Unlike allegations pertaining to liability, allegations in connection with damages

are not deemed admitted in the context of a default judgment. See Greyhound

Exhibitgroup, Inc., 973 F.2d at 158. Indeed, “while a default judgment constitutes an

admission of liability, the quantum of damages remains to be established by proof unless

the amount is liquidated or susceptible of mathematical computation.” Liberty Mut. Ins.

Co. v. Fast Lane Car Serv., Inc., 681 F. Supp. 2d 340, 349 (E.D.N.Y. 2010) (quoting Levesque

v. Kelly Comme'ns, Inc., No. 91 CV 7045, 1993 WL 221138, at *4 (S.D.N.Y. Jan. 25, 1993);

Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir.1974)). “Although the ‘court must ensure that

there is a basis for the damages specified in a default judgment, it may, but need not, make

the determination through a hearing.” A district court may determine there is a sufficient

evidentiary basis for damages either based upon evidence presented at a hearing, or upon

a review of detailed affidavits and documentary evidence. Cement & Concrete Workers Dist.

Council Welfare Fund, 699 F.3d at 234.

Here, where Plaintiff has filed detailed affidavits and exhibits pertaining to his

injuries, medical care, need for further surgery in the future, and the damages awarded by

other courts for similar injuries, and where Defendant has not contested Plaintiffs

submissions, the Court is satisfied that it can make an informed decision regarding his

pain and suffering damages without an evidentiary hearing. Liberty Mut. Ins. Co., 681 F.

Supp. 2d at 349.

To begin with, Plaintiff himself submitted a declaration explaining how the accident

happened, and the pain and suffering he has endured due to the accident. ECF No. 6-1.

Plaintiff stated that while visiting a friend in New York in July 2024, he was invited to go

tubing on Chautauqua Lake in a boat owned by Defendant. Id. § 3. Plaintiff further stated

that while he was in the water at the back of the boat preparing to go tubing, his friend

put the boat into gear without warning and Plaintiffs left leg was struck by the boat’s

spinning propeller. Jd. 4] 5-6. Plaintiff began bleeding profusely and was in “excruciating

pain,” but was able to get back in the boat and apply a tourniquet to slow the bleeding. Id.

{ 7.

Plaintiff was transported by helicopter to the University of Pittsburgh Medical

Center-Hamot (““UPMC”), where he remained from July 27 to August 7, 2024. Id. § 8.

During that time, he experienced “terrible pain” and feared he would lose his leg. Id. He

needed multiple blood transfusions, surgery and surgical hardware to repair factures in

his leg and knee and attempt to repair nerve damage. Jd. Plaintiff returned to Florida after

his discharge from UPMC, but had to be hospitalized again when his leg became infected.

Id. § 9. From August 14 to August 28, Plaintiff received inpatient care and underwent

various surgical procedures at Memorial Regional Medical Center (““MRMC’”) to treat his

infected leg. Id. After his discharge from MRMC, Plaintiff required physical therapy until

early December 2024. Id. § 10.

To this day, Plaintiff still suffers from “foot drop” in his injured leg, and needs to

wear a brace to keep his foot in a neutral position. Jd. { 11. He walks with an altered gait,

causing both hip and back pain and difficulty going up and down stairs. Id. He has pain,

numbness, and tingling in his left lower leg that runs down to his toes. Jd. In addition,

Plaintiff has knee pain every day after standing or walking for any length of time, and gets

frequent muscle cramps in his calf and shin. Jd. Whereas Plaintiff used to run 3 to 5 miles

several times a week, enjoy wake-boarding and snow-boarding, and operate a motorcycle,

he can no longer do any of those things. Jd. § 12. Still just 33 years old, he struggles

emotionally to adjust to the drastic change in his quality of life. Jd. 13.

Plaintiffs declaration is supported by the declaration of Alan Hartstein, a doctor of

podiatric medicine licensed by the Florida Board of Podiatric Medicine. ECF No. 6-8. Dr.

Hartstein stated that he reviewed Plaintiffs medical records from UPMC and MRMC, and

personally examined Plaintiff on November 19, 2025. Id. 4 3-4. Based on his records

review and personal examination, Dr. Hartstein confirmed that while at UPMC, Plaintiff

was diagnosed with and treated for acute extravasation within the popliteal fossa and

lateral head of the gastrocnemius; acute lateral tibial plateau fracture with an angulated

split component; acute mildly comminuted nondisplaced fibular head fracture; and deep

lacerations. Id. § 7. He also stated that his examination of Plaintiff “revealed that in

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addition to permanent scarring, [Plaintiff] has a significant drop foot deformity on the left

lower extremity due to the trauma he sustained on [July 27, 2024] with a complete

transection of the common peroneal nerve.” Jd. § 11. Thus, Dr. Hartstein opined that

Plaintiff will need multiple surgical treatments in the future, including a tendon transfer

and likely knee replacement. Jd. He further opined that based upon a reasonable degree of

medical certainty, Plaintiffs current condition and the contemplated medical treatments

are causally related to the July 27, 2024 boat accident. Id. § 13.

Lastly, Plaintiffs counsel submitted a declaration in support of Plaintiffs motion

which contained, among other items, research he conducted regarding damages awarded

in cases with injuries similar to those Plaintiff sustained. ECF No. 6-9. The first case,

Lewis v. Flushing Commons Property Owner, LLC, et al, involved a 2018 New York jury

award of $800,000 for past pain and suffering and $1,000,000 for future pain and suffering

for a 35-year old ironworker who suffered a compound, complete transverse fracture of the

distal region of his left fibula and tibia. ECF No. 6-18 at 2-3. The second case, Karasu v.

Security Auto Sales Inc., et al, involved a 2022 New York jury award of $1,000,000 past

pain and suffering and $1,000,000 future pain and suffering to a 40-year old roofer who

broke his ankle, fibula, and tibia when he fell from a ladder on a worksite. ECF No. 6-13

at 4-5. Further, in his memorandum in support of the instant motion, Plaintiff identified

an additional case in this Circuit, Velasquez v. United States Postal Serv., 155 F. Supp. 3d

218 (E.D.N.Y. 2016), which not only involved a comparable damages award for past and

future pain and suffering to a motorcyclist who sustained injuries to one of his legs similar

to Plaintiffs, but also catalogued a number of other decisions from New York state courts,

some of which included significantly higher pain and suffering damages than those sought

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by Plaintiff for injuries that were arguably less severe. See Velasquez, 155 F. Supp. 3d at

230-31.

Based on the foregoing, the Court finds that an award of $750,000 in damages for

past pain and suffering is reasonable. There is record evidence demonstrating that

Plaintiff experienced excruciating pain from the accident itself; experienced the fear of

losing his leg; suffered through multiple surgeries and procedures to save his leg, and

repair his broken bones and nerve damage (and treat his subsequent infection); worked

through prolonged physical therapy; and has endured the loss of many of the activities —

such as running, wakeboarding, snow-boarding, and motorcycle-riding — that he once

enjoyed.

Additionally, the Court finds that an award of an additional $750,000 for future pain

and suffering is also reasonable. Plaintiff is now in his early 30s, which means he faces

multiple decades dealing with the lifestyle changes imposed by his injuries, the chronic

pain and muscle cramping he experiences after standing or walking, his “drop foot” and

altered gait, and the probable additional surgeries he will have to undergo as discussed by

Dr. Hartstein. See, eg., Howse v. Kent Worldwide Mach. Works, Inc., No.

02CIV2810RMBKNF, 2010 WL 11607350, at *6 (S.D.N.Y. June 18, 2010), report and

recommendation adopted as modified, No. 02-CV-2810 (RMB)(KNF, 2010 WL 3025642

(S.D.N.Y. July 28, 2010) (“In determining an award for future pain and suffering, courts

typically look to the nature of the plaintiffs injury and its future effect on his or her life,

as well as the life expectancy of the plaintiff.”).

CONCLUSION

For the foregoing reasons, IT IS HEREBY

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ORDERED that Plaintiffs motion for a default judgment [ECF No. 6] is granted,

and he is awarded $750,000 for past pain and suffering, and $750,000 for future pain and

suffering, for a total of $1,500,000; and it is further

ORDERED the Clerk of the Court is directed to enter a default judgment in

Plaintiffs’ favor against Defendant in the amounts set forth above.

SO ORDERED.

Dated: June ff. 2026

Rochester, New York

ENTER:

United States District Judge

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