Gutama

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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ANIBAL GUTAMA, :

:

Plaintiff, :

: MEMORANDUM & ORDER

-against- :

: 23-CV-2802 (ENV) (PK)

WHITESTONE AIR INC., KONSTANTINA :

BISCARDI a/k/a KONSTANTINA TEGERIDES, :

and MICHAEL TEGERIDES, :

:

Defendants. :

:

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VITALIANO, D.J.

Defendants Konstantina Biscardi a/k/a Konstantina Tegerides and Michael Tegerides (the

“Individual Defendants”) have moved to vacate a default judgment entered against them (but do

not seek to alter the default judgment entered against co-defendant Whitestone Air, Inc.

(“Whitestone”)). See Dkt. Nos. 23, 25; see also Obj. at 7 n.2 (abandoning request to vacate default

judgment against Whitestone). Before the Court is a Report and Recommendation issued by

Magistrate Judge Peggy Kuo, recommending the denial of vacatur (the “R. & R.”). 1 See R. & R.,

Dkt. No. 47. For the reasons that follow, the Court overrules the objections and adopts the R. &

R. in its entirety as the opinion of the Court. The Individual Defendants’ motion to vacate the

default judgment entered against them is denied.

1The Court often refers to the Individual Defendants as “defendants.” Citations to pages of the

parties’ briefing generally refer to the Electronic Case Filing System (“ECF”) pagination.

Background

On April 14, 2023, plaintiff Anibal Gutama commenced the instant action, asserting

violations of the Fair Labor Standards Act and New York Labor Law2 against his former employer,

Whitestone, an HVAC system installation and repair business, and its owners, the Individual

Defendants, for whom he worked from approximately May 2018 through November 2022. See

Compl., Dkt. No. 1. Plaintiff filed Affidavits of Service stating that defendants were served on

April 22, 2023 by a process server who, after three attempts to effectuate personal service, affixed

and taped copies of the summons and complaint to defendants’ door and mailed the pleadings to

their last-known residence.3 See Dkt. Nos. 6, 7. Defendants did not answer the complaint or

otherwise appear; a certificate of default was entered against all defendants on June 12, 2023. See

Dkt. No. 10.

After a few fits and starts, plaintiff moved for a default judgment; defendants, again, did

not respond. See Dkt. Nos. 15-16. The Court adopted an unobjected-to R. & R., recommending

2 Plaintiff brings claims for failure to pay minimum wages and overtime wages under 29 U.S.C.

§§ 201 et seq., and failure to pay gap time/minimum wages, overtime wages, and spread of hours

as well as wage notice and wage statement violations under N.Y. Lab. Law §§ 650 et seq. See Dkt.

No. 1. In addition to his eight causes of action, plaintiff advises that, pursuant to New York

Business Corporation Law (“B.C.L.”) § 630, he intends to “hold … Whitestone’s top ten

shareholders and/or members liable for the unpaid wages” and “demands that Whitestone permit

an examination of its record of shareholders under B.C.L. § 624 so that liability may be imposed

on its top ten shareholders for the unpaid wages.” Id. at 10.

3 Defendants are married and share a residence. Dkt. Nos. 6-7, 27.

that the motion be granted in part and denied in part. See Dkt. No. 21; Nov. 20, 2024 Order. A

default judgment was entered against all three defendants on November 22, 2024. Dkt. No. 23.

Defendants moved to vacate that judgment under Fed. R. Civ. P. 60(b) on March 17, 2025.

See Dkt. Nos. 25, 26, 40, 43. The Court referred that motion for an R. & R., which Judge Kuo

issued on April 3, 2026, recommending denial of vacatur. See R. & R. Defendants interposed

objections, which plaintiff opposed; defendants replied. See Obj.; Opp. to Obj., Dkt. No. 50; Reply

to Obj., Dkt. No. 52.

Legal Standards

A motion to vacate a default judgment may be brought under Fed. R. Civ. P. 60(b), which

provides that “the court may relieve a party or its legal representative from a final judgment” for

reasons including, “(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered

evidence that, with reasonable diligence, could not have been discovered in time to move for a

new trial under Rule 59(b); (3) fraud ... misrepresentation, or misconduct by an opposing party;

(4) the judgment is void; (5) the judgment has been satisfied ... or (6) any other reason that justifies

relief.” Fed. R. Civ. P. 60(b). It must be filed no later than one year after the entry of judgment or

order. See Trs. of Local 531 Pension Fund v. Am. Indus. Gases, Inc., 708 F. Supp. 2d 272, 274

(E.D.N.Y. 2010). The Second Circuit has also set forth a three-factor test to guide decisions on

such motions outside the Rule 60(b)(4) context: “(1) whether the default was willful; (2) whether

setting aside the default would prejudice the party for whom default was awarded; and (3) whether

the moving party has presented a meritorious defense.” Singh v. Meadow Hill Mobile Inc., No.

20-cv-3853, 2023 WL 3996867, at *2 (S.D.N.Y. June 14, 2023) (cleaned up).

During the pendency of this motion, the Second Circuit clarified the requirements for a

proper objection to an R. & R. in addition to the fourteen-day service timeline set by Fed. R. Civ.

P. 72(a). See Nambiar v. Cent. Orthopedic Grp., LLP, 158 F.4th 349, 359-61 (2d Cir. 2025). “A

litigant who has fully and forcefully argued her point in front of the magistrate judge and lost must

be able to make that argument again to the district judge,” the Second Circuit explained,

“Otherwise, what value would there be in objecting?” Id. at 360-61. At the same time, however,

an objection “may not simply rest on the briefs” that the magistrate judge considered; it must

“lodge a specific objection to some specific aspect of the [R. & R.].” Id. at 361. On the other side

of the ledger, new “case law and/or evidentiary material, which could have [been], but were not,

presented to the magistrate judge in the first instance” are generally not permitted on objection.

Gov’t Emps. Ins. Co. v. Galperin, No. 23-cv-9241, 2025 WL 909190 (E.D.N.Y. Mar. 26, 2025).

If an objection is proper, the district court reviews the corresponding R. & R. section(s) de

novo. See Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1)(C). In the absence of any

objection or in the presence of an improper objection, the district court reviews the associated R.

& R. section(s) for clear error. See Nambiar, 158 F.4th at 359, 361; see also GS Holistic, LLC v.

New Paradise Inc., No. 25-cv-2609, 2025 WL 3654530, at *1 (E.D.N.Y. Dec. 16, 2025). Clear

error exists “where, upon a review of the entire record, [the district judge] is left with the definite

and firm conviction that a mistake has been committed.” Saveria JFK, Inc. v. Flughafen Wien,

AG, No. 15-cv-6195, 2017 WL 1194656, at *2 (E.D.N.Y. Mar. 30, 2017). Upon its review, a

district court “may accept, reject, or modify, in whole or in part” the R. & R.’s “findings or

recommendations.” See Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1)(C).

Discussion

Defendants have filed four timely written objections all linked in one way or another to

their core objection that the R. & R. did not provide sufficient reasoning to satisfy state rule of

procedure 317, see New York Civil Practice Law & Rules (“C.P.L.R.”) § 317. See, e.g., Obj. at 2.

Setting aside defendants’ C.P.L.R. § 317 arguments, recent case law suggests that legal arguments

set forth in an R. & R. are subject to valid objections where the R. & R. provides no reasoning

supporting the conclusion to exclude a line of analysis. See, e.g., Cambridge Pavers, Inc. v.

Armorproof Paving & Masonry Li, Inc., No. 24-cv-7784, 2026 WL 482658, at *6 (E.D.N.Y. Feb.

20, 2026) (de novo review when plaintiff objected that the magistrate judge “fail[ed] to duly

consider” portions of “inherent distinctiveness” analysis).

The misapprehension regarding which law governs the outcome of defendants’ objections

advanced here does not alter the result. This is hardly surprising, since the state standard that

defendants relied upon (even if it had applied) is cut from the same cloth as the controlling federal

standard. See Obj. at 6. Federal Rule of Civil Procedure 60(b) and Second Circuit precedent

govern motions seeking vacatur of a default judgment entered in federal court. See, e.g., Hanna

v. Plumer, 380 U.S. 460, 471-74, 85 S. Ct. 1136, 1144-45, 14 L. Ed. 2d 8 (1965); Shady Grove

Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 398-99, 130 S. Ct. 1431 1437-38, 176

L. Ed. 2d 311 (2010); Milgram v. Orthopedic Assocs. Defined Contribution Pension Plan, 666

F.3d 68, 78 (2d Cir. 2011). Accordingly, upon de novo review, this first objection is overruled.

In their second objection, defendants challenge Judge Kuo’s finding that they were properly

served in April 2023. See Obj. at 7-9. The objection is rooted in their claim that by the time they

received process, it was already too late to respond. Obj. at 6-8. De novo review of the record

revealed that plaintiff’s process server effectuated proper “nail and mail” service in compliance

with C.P.L.R. § 308(4). See, e.g., G & G Closed Circuit Events, LLC v. Clayton, 779 F. Supp. 3d

317, 330 (E.D.N.Y. 2025). The process server satisfied the C.P.L.R. § 308(4) “due diligence”

requirement by attempting to serve defendants on three different dates, at three different times,

including before business hours. See Dkt. Nos. 6-7. The Declaration submitted by Biscardi (the

“Biscardi Declaration”) neither refutes the facts in the Affidavits of Service nor presents any viable

factual dispute about the propriety of that service. See Dkt. No. 27. While the Court wishes

Biscardi good health, her statement that her cancer treatment kept both her and her husband from

home, where she manages the mail, is immaterial, given the other significant activities the record

reveals that defendants carried out during the course of the litigation initially. See id. ¶¶ 4-8.

Defendants embellished their argument on this point in their attempt to stretch out the time

that they claim elapsed before they received notice of the lawsuit. Specifically, Biscardi’s claim

that she did not learn about the lawsuit until late February 2025 crumbles under evidence in the

record. See id. ¶ 9. Defendants do not dispute that in early September 2023—approximately one

year and five months before their bank account was frozen in late February 2025—Biscardi called

plaintiff’s counsel Yale Pollack to discuss this same case, stating that “she paid [p]laintiff every

single dollar to which he was entitled,” and that she would be consulting with her attorney, Elio

Forcina. See id.; Dkt. No. 38 ¶¶ 14-15. See also Opp. to Obj. at 7. That interaction as well as

follow-up correspondence with Forcina prompted Pollack to file two letters seeking extensions of

time to move for a default judgment. See Dkt. Nos. 13-14. Despite this dialogue, no answer was

docketed, and only then did plaintiff move forward with his request for a default judgment. See

Dkt. No. 15.

Clearly, if defendants missed the original May 2023 response deadline, conversations with

plaintiff’s counsel, see infra, had proven that he is flexible on timelines. See Dkt. Nos. 13-14. And

as courts have recognized, C.P.L.R. § 317 is not a shield for defendants who had notice of the case

and chose not to take steps in the litigation. See, e.g., Guayara v. First Rockaway Coast Corp., 35

A.D. 3d 659, 660 (2d Dep’t 2006). So, once again, even if C.P.L.R. 317 were cognizable, it would

not afford defendants the relief they seek. For these reasons, this objection does not survive de

novo review and is overruled.

Turning to the third objection, defendants object to Judge Kuo’s conclusion that they

failed to establish a meritorious defense—an element considered under both the federal framework

for vacating default judgments and C.P.L.R. § 317. See Obj. at 8-9; see also In re Orion

HealthCorp, Inc., 95 F.4th 98, 104 (2d Cir. 2024). Defendants lean on the Biscardi Declaration,

which, they claim, asserts an anticipated independent contractor defense. See Obj. at 8-9. Still,

assuming arguendo, the truth of its facts, the Biscardi Declaration does not meet the “low [bar] of

adequacy to support the independent-contractor defense.” Guthrie v. Rainbow Fencing Inc., 349

F.R.D. 55, 70 (E.D.N.Y. 2025) (cleaned up). The Biscardi Declaration, as with the declaration in

Guthrie, 349 F.R.D. at 70, offers only “conclusory” statements, including that plaintiff maintained

his own van and tools, “was not always available for jobs,” and was tapped when Tegerides was

occupied, see Dkt. No. 27 ¶ 12. See also Reply to Obj. at 7. While the Court agrees that defendants

need not address every factor under Brock v. Superior Car, Inc., 840 F.2d 1054, 1058 (2d Cir.

1988), Biscardi’s statements do not provide sufficient “evidence of facts that, if proven at trial,

would constitute a complete defense.” Guthrie, 349 F.R.D. at 71. Further, the Enron Oil Corp. v.

Diakuhara opinion, which defendants marshal for the proposition that “the defense need not be

ultimately persuasive,” found a meritorious defense where the parties submitted substantially more

documentary evidence than presented here. 10 F.3d 90, 98 (2d Cir. 1993). See also Obj. at 9; Opp.

to Obj. at 8. But, documented or not, defendants cannot meet the mark without some plausible

showing of a legitimate defense, and they have fallen well short of that mark. As a result, this

objection is overruled; it offers no basis to set aside the R. & R. and grant defendants’ request to

vacate the default judgment against them.

Not to suggest that the result would be different under the more demanding standard of de

novo review, the Court finds that under Nambiar, the fourth objection does not qualify as a valid

written objection to Judge Kuo’s R. & R and is, therefore, subject to clear error review. 158 F.4th

at 359-61. The objection is composed of two sentences, reading, in pertinent part: (1) “Under §

317, excuse is not an element, and it is well-settled that, if the other requirements of the provisions

are met, a default judgment may be vacated,” and (2) “In light of the foregoing, Defendants need

not address willfulness and prejudice to establish entitlement to relief under C.P.L.R. § 317.” Obj.

at 9. The first is neither a finding nor a conclusion in the R. & R., and the second is untethered to

precedent or how it relates to the R. & R. specifically. Therefore, the Court reviews the

corresponding R. & R. sections for clear error. See GS Holistic, LLC, 2025 WL 3654530, at *1;

see also R. & R. at 10-12, 14-15. Consequently, finding those sections to be correct, well-reasoned,

and free of any clear error, this fourth objection is overruled, and affirmance of the R. & R. in this

respect is warranted and ordered.

Judged by the appropriate standard of review, all of the objections interposed by defendants

are without merit, and the Court adopts the R. & R. in its entirety as the opinion of the Court.

Under Second Circuit case law, defendants have not met their burden under Federal Rule of Civil

Procedure 60(b) to receive relief from the default judgment entered against them. Vacatur is

denied.

Conclusion

For the reasons set forth above, the Court overrules the objections and adopts the R. & R.

in its entirety as the opinion of the Court. The motion to vacate the default judgment is denied.

Because “a default is not an admission of damages,” Finkel v. Romanowicz, 577 F.3d 79,

83 n.6 (2d Cir. 2009), the parties are referred to Magistrate Judge Peggy Kuo for an inquest as to

damages as appropriate and with respect to the award of any other relief, and for a Report &

Recommendation as to her findings.

So Ordered.

Dated: Brooklyn, New York

August 25, 2026

/s/ Eric N. Vitaliano

ERIC N. VITALIANO

United States District Judge