Opinion
21-CV-235 (AT) (JLC)
06-30-2022
KEYBANK NATIONAL ASSOCIATION, successor by merger to Key Equipment Finance, Plaintiff, v. COLOR EXPRESS PRINTING, INC., and DANIEL PAYEUR, Defendants.
To the Honorable Analisa Torres, United States District Judge.
REPORT & RECOMMENDATION
JAMES L. COTT, UNITED STATES MAGISTRATE JUDGE.
In this breach of contract case, a certificate of default was entered against Defendants Color Express Printing, Inc. and Daniel Payeur on March 16, 2021. After Plaintiff KeyBank National Association first moved for a default judgment, which was denied on November 22, 2021 due to deficiencies in the motion, it filed an amended motion for a default judgment on December 23, 2021. The case was then referred to me to conduct an inquest into damages. For the reasons stated below, I recommend that KeyBank be awarded damages (inclusive of the principal amount, monthly late fees, and litigation costs) in the amount of $100,212.30 plus pre- and post-judgment interest.
I. BACKGROUND
A. Procedural History
On January 13, 2021, KeyBank filed a complaint against Color Express Printing, Inc. and Daniel Payeur (collectively, “Defendants”). Complaint dated January 12, 2021 (“Compl.”), Dkt. No. 6. KeyBank asserted causes of action for breach of contract and breach of guaranty based on the allegation that Defendants defaulted on payments owed to KeyBank pursuant to a Loan and Security Agreement. Id. Defendants were served on February 9, 2021. Dkt. No. 14. Neither Defendant filed an answer or appeared in this action. Accordingly, a certificate of default was entered against them on March 16, 2021. Dkt. No. 23.
On April 29, 2021, KeyBank moved for default judgment against Defendants. Motion for Default Judgment, Dkt. No. 25; Declaration of Danielle E. Pierre in Support of Motion for Default Judgment, Dkt. No. 26; Statement of Damages, Dkt. No. 27; Proposed Default Judgment, Dkt. No. 28. The case was referred to the Honorable Kevin Nathaniel Fox, the then-assigned magistrate judge, to conduct an Inquest into Damages after Default. Dkt. No. 30. On October 18, 2021, Magistrate Judge Fox issued a Report and Recommendation, recommending that the motion for default judgment be denied due to procedural deficiencies in KeyBank's filings.
After Judge Fox retired in December 2021, this case was reassigned to me.
Dkt. No. 32. The Court adopted the Report and Recommendation in its entirety and denied KeyBank's motion on November 22, 2021. Dkt. No. 34.
On December 23, 2021, KeyBank filed an Amended Motion for Default Judgment against Defendants. Amended Motion for Default Judgment (“Am. Mot.”), Dkt. No. 35. In support of its claim for damages, KeyBank submitted a declaration from William Lim, counsel for KeyBank in this case, dated December 23, 2021 (“Lim Decl.”), Dkt. No. 35-1, and a declaration from Nancy Barnes, a Litigation Coordinator II in the Asset Recovery Group of KeyBank, dated December 20, 2021 (“Barnes Decl.”), Dkt. No. 35-2. KeyBank also included supplemental exhibits to Barnes' declaration in support of its claim for damages, including: the January 6, 2016 Loan and Security Agreement between KeyBank and Color Express (Exh. A, “Agreement”); an August 22, 2016 Correcting Amendment to the Agreement (Exh. B, “Correcting Amendment”); a January 6, 2016 Continuing Guaranty between Payeur and KeyBank (Exh. C, “Guaranty”); a September 9, 2020 Voluntary Surrender letter sent to Color Express (Exh D, “Surrender Letter”); an October 21, 2020 Notice of Deficiency balance demand letter (Exh. E, “Notice of Deficiency”); and a December 11, 2020 Demand Letter to Color Express and Payeur demanding payment of the total deficiency balance from KeyBank (Exh. F, “Demand Letter”). KeyBank seeks an award of $100,212.30 in damages for Color Express's breach of contract and for Payeur's breach of guaranty, inclusive of a principal amount of $94,566.30, accrued monthly late fees from July 2019 through December 2021 in the amount of $4,728.00, and litigation costs in the amount of $918.00 for filing and process server fees. Barnes Decl. at ¶ 17.
Keybank alleges in its Complaint that it sustained damages including reasonable attorneys' fees. Compl. ¶¶ 16, 22, 29. However, no request for attorneys' fees is made in the Amended Motion for Default Judgment, or in the accompanying declarations. Even if KeyBank did seek attorneys' fees, it did not submit any documentation relevant to such a calculation. Therefore, the Court declines to consider attorneys' fees in this Report and Recommendation.
The amended motion was referred to me for a Report and Recommendation on December 27, 2021. Dkt. No. 36.
B. Factual Background
The following facts, which are drawn from KeyBank's pleadings and supported by its submissions related to this inquest, are deemed established for the purpose of determining the damages to which KeyBank is entitled. See, e.g., Sills Cummis & Gross P.C. v. Dusange-Hayer, No. 19-CV-7463 (PGG) (SDA), 2020 WL 6561650, at *1, n.1 (S.D.N.Y. Aug. 14, 2020) (citing Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009)), adopted by 2020 WL 5253516 (Sept. 3, 2020).
KeyBank is a national banking association with its principal place of business in Cleveland, Ohio. Compl. ¶ 1. Color Express Printing, Inc. is a Michigan corporation with its principal place of business in Ann Arbor, Michigan. Id. ¶ 2. Daniel Payeur is an individual domiciled in Saline, Michigan. Id. ¶ 3. A Loan and Security Agreement (“Agreement”) entered into between Color Express Printing, Inc. and KeyBank provides that “[a]ny action between the parties arising out of or relating to this Agreement . . . shall be brought in any state or federal court located in the State of New York[.]” Id. ¶¶ 5-6; Agreement ¶ 18.
On or about January 6, 2016, KeyBank and Color Express entered into the Agreement, in which KeyBank agreed to finance Color Express's purchase of equipment in exchange for 60 payments of $3,092.09 per month, for a total amount of $160,480.00. Compl. ¶ 7; Agreement at 1. The Agreement provided in relevant part that: 1) Color Express would be in default if it or any guarantor failed to pay any amount within 10 days of the due date, Compl. ¶ 9; Agreement ¶ 13; 2) in the event of a missed payment, KeyBank has the right to charge as late fees the greater of 5% of each missed payment or $29.00, Barnes Decl. ¶8, Agreement ¶12; and 3) in the event of a default, KeyBank has the right to be made whole by, inter alia, exercising any remedy at law or equity. Compl. ¶ 10; Agreement ¶ 14.
On August 22, 2016, the total cost of financing the Equipment was adjusted to $163,600.00. Barnes Decl. ¶ 7; Correcting Amendment ¶ 12. The monthly payments were in turn adjusted to $3,152.21 per month. Id.
Also on January 6, 2016, Payeur executed and delivered to KeyBank the Guaranty, in which he personally “absolutely and unconditionally guarantee[d] to [KeyBank] the full and prompt performance of all [of Color Express's] obligations to [KeyBank], including payment to [KeyBank] of the Indebtedness . . . together with all interest and costs and expenses of collection, including reasonable attorneys' fees[.]” Compl. ¶ 11; Guaranty at 1. According to the terms of the Guaranty, KeyBank would be permitted to proceed against the Guarantor in the first instance by suit or otherwise collect monies due or guaranteed without first resorting to other remedies. Compl. ¶ 12; Guaranty ¶ 1.
On or about July 10, 2019, Color Express failed to make a payment when due. Barnes Decl. ¶ 11. “On or about September 9, 2020, Color Express was declared in default of its obligations under the Agreement, the amount due was accelerated, and Color Express was provided the option to [return] the Equipment for sale at Auction, by voluntary surrender.” Compl. ¶ 13; see also Barnes Decl. ¶ 12, Exh. D (Surrender Letter). KeyBank then demanded payment on or about October 21, 2020 of the total remaining deficiency balance of $99,713.25 within 10 days of the date of the letter. Id. ¶ 14; see also Barnes Decl. ¶ 13, Exh. E (Notice of Deficiency). On or about December 11, 2020, KeyBank again demanded payment of the total deficiency balance of $99,713.25 within 10 days of the date of the letter. Id. ¶ 15; see also Barnes Decl. ¶ 14, Exh. F (Demand Letter).
According to KeyBank, Defendants “have failed to cure default and pay the deficiency balance owed.” Id. ¶ 16; Barnes Decl. ¶ 15. KeyBank now seeks judgment in the amount of $100,212.30, plus statutory post-judgment interest. Lim Decl. ¶ 10; see also Barnes Decl. ¶¶ 16-17.
II. DISCUSSION
A. Legal Standards
“Even when a default judgment is warranted based on a party's failure to defend, the allegations in the complaint with respect to the amount of the damages are not deemed true. The district court must instead conduct an inquiry in order to ascertain the amount of damages with reasonable certainty.” Am. Jewish Comm. v. Berman, No. 15-CV-5983 (LAK) (JLC), 2016 WL 3365313, at *3 (S.D.N.Y. June 15, 2016) (quoting Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999), adopted by 2016 WL 4532201 (Aug. 29, 2016)). A plaintiff “bears the burden of establishing its entitlement to recovery and thus must substantiate its claim with evidence to prove the extent of its damages.” Id. at *2 (cleaned up). “To establish damages upon default, a plaintiff must demonstrate that the ‘compensation sought relate[s] to the damages that naturally flow from the injuries pleaded.'” Id. at *3 (quoting Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 159 (2d Cir. 1992)). “[A] plaintiff must submit sufficient evidence, in the form of detailed affidavits and other documentary materials . . . to enable the district court to ‘establish damages with reasonable certainty.'” Nat'l, Photo Grp., LLC v. Bigstar Entm't, Inc., No. 13-CV-5467 (VSB) (JLC), 2014 WL 1396543, at *2 (S.D.N.Y. Apr. 11, 2014) (quoting Transatlantic Marine Claims Agency, Inc. v. Ace 109 F.3d 105, 111 (2d Cir. 1997)), adopted by 2014 WL 5051275 (Oct. 8, 2014); see also Fed.R.Civ.P. 55(b)(2).
Where a defendant has defaulted, a court is still “required to determine whether the [plaintiff's] allegations establish [the defendant's] liability as a matter of law.” Related Companies, L.P. v. Ruthling, No. 17-CV-4175 (JSR) (DF), 2019 WL 10947100, at *3 (S.D.N.Y. July 23, 2019) (quoting Finkel v. Romanowicz, 577 F.3d. 79, 84 (2d Cir. 2009)); see also Cont'l Indus. Grp. v. Altunkilic, 788 Fed.Appx. 37, 40 (2d Cir. 2019) (“A district court is empowered to evaluate the sufficiency of allegations before awarding damages in a default judgment.”). To the extent a liability finding was not made as part of the entry of default, the record supports the conclusion that KeyBank has established liability here. As a threshold matter, the Court applies New York State law because it sits in diversity and because the agreements at issue specifically designate New York law as controlling. See Compl. ¶¶ 5-6; Agreement ¶ 18 (“[a]ny action between the parties arising out of or relating to this Agreement . . . shall be brought in any state or federal court located in the State of New York[.]”). Under New York law, the elements of the breach of contract claims at issue here are: “(i) the formation of a contract between the parties; (ii) performance by the plaintiff; (iii) failure of defendant to perform; and (iv) damages.” Lowry, et al. v. Oppenheimerfunds, Inc., et al., No. 20-CV-2288 (VSB), 2022 WL 976823, at *4 (S.D.N.Y. Mar. 31, 2022) (cleaned up). In its complaint, KeyBank sufficiently alleges that a contract, in the form of a Loan and Security Agreement (as to Color Express) as well as a Guaranty (as to Payeur), existed among the parties, that KeyBank duly performed consistent with the agreements, that the defendants breached the agreements by defaulting on its obligations, and that KeyBank has been damaged. Thus, liability has been established as a matter of law.
Through the execution of the Agreement and Guaranty, Defendants consented to the jurisdiction of any New York federal or state court for “[a]ny action between the parties arising out of or relating to this Agreement.” See Compl. ¶¶ 5-6; Agreement ¶ 18. Thus, no jurisdictional issue is presented here.
“Under New York law, a successful plaintiff in a breach of contract action is entitled to damages in the amount necessary to put the plaintiff in the same economic position he would have been in had the defendant fulfilled his contract.” Am. Jewish Comm., 2016 WL 3365313, at *5 (cleaned up). “Where damages are susceptible to simple mathematical calculation and the plaintiff provides a ‘sufficient basis from which to evaluate the fairness' of the requested damages, no evidentiary hearing is necessary.” Euro Pac. Capital Inc. v. Bohai Pharm. Grp., Inc., No. 15-CV-4410 (VM), 2018 WL 1596192, at *5 (S.D.N.Y. Mar. 28, 2018) (quoting Am. Jewish Comm., 2016 WL 3365313, at *4).
B. Analysis
1. Breach of Contract Damages
KeyBank has provided sufficient evidence “in the form of detailed affidavits and other documentary materials to enable the court to ‘establish damages with reasonable certainty.'” Nat'l Photo Grp., LLC, 2014 WL 1396543, at *2 (quoting Transatlantic Marine Claims Agency, Inc., 109 F.3d at 111). Specifically, KeyBank has produced a signed declaration from KeyBank employee Nancy Barnes along with signed copies of the Agreement and the Guaranty, the Correcting Amendment, the Voluntary Surrender Letter, the Notice of Deficiency, and the Demand Letter as supplemental exhibits to its Amended Motion. See Barnes Decl., ¶¶ 3-14, Exhibits A-F. These submissions provide a sufficient basis from which to evaluate the fairness of the requested damages and therefore no evidentiary hearing is necessary.
KeyBank contends, through its counsel, that it “seeks judgment for the liquidated amount of $100,212.30, plus statutory post-judgment interest, as set forth in the calculation of damages in the Declaration of Nancy Barnes filed together herewith.” Lim Decl. ¶10. However, the Barnes Declaration does not include a calculation of damages. Despite that omission, the Correcting Amendment provides that each of the 60 payments would amount to $3,152.21. As of July 10, 2019, when the payments ceased, there were 15 outstanding payments and 15 remaining payments to be made, for a total of 30 additional payments. Barnes Decl. ¶ 14, Exh. F (Demand Letter) at 1. Based on the Court's calculation (30 x 3,152.21), the principal amount owed is $94,566.30, to which Barnes attests in her declaration. Barnes Decl. ¶ 17.
The record does not establish when the monthly payments began.
The Agreement further establishes that an amount equal to the greater of 5% of each missed payment or $29.00 may be applied as a late fee for each missed payment. Agreement ¶ 12 (“If any part of any sum is not paid when due [Color Express] will pay [KeyBank] . . . liquidated damages mutually stipulated to be . . . the greater of 5% of each delayed sum or $29 . . .”). Based on the Court's calculation for 30 additional payments not yet made at the time of default ((.05 x 3,152.21) x 30), the accrued missed payment fees total $4,728.00, to which Barnes attests in her declaration. See Barnes Decl. ¶¶ 8, 17.
Therefore, in order to “put the plaintiff in the same economic position [it] would have been in had the defendant fulfilled [its] contract,” Am. Jewish Comm., 2016 WL 3365313, at *5, KeyBank is entitled to damages in the amount of $99,294.30, comprised of the principal amount of $94,566.30 plus $4,728.00 in late fees pursuant to the terms of the Agreement.
Supporting Documents and the Complaint note that the “total deficiency” balance is $99,713.25. See Demand Letter; Notice of Deficiency; see also Compl. ¶¶ 17, 22, 29; unsworn Statement of Damages filed April 29, 2021 (Dkt. No. 27). However, KeyBank does not refer to this number in the Amended Motion, and it does not otherwise explain from where this number was derived or how it relates to the calculations described herein. The $99,713.25 amount sought in the Complaint is more than - not less than - the recommended breach of contract damages of $99,294.30 as calculated based on the Inquest papers. Therefore, the recommended default judgment does not “exceed in amount[] what is demanded in the pleadings” and Defendants had notice of the potential amount of damages to be awarded if this Report and Recommendation is adopted. Fed.R.Civ.P. 54(c).
2. Prejudgment Interest
“Under New York law, ‘a plaintiff who prevails on a claim for breach of contract is entitled to prejudgment interest as a matter of right.'” Midwood Junction v. Puerto del Sol Int'l Inv., S.A., No. 15-CV-5181 (RA) (SN), 2016 WL 8905357, at *4 (S.D.N.Y. Dec. 5, 2016) (quoting U.S. Naval Inst. v. Charter Comm'ns, Inc., 936 F.2d 692, 698 (2d Cir. 1991)), adopted by 2017 WL 1857248 (May 4, 2017); see also Arizona Premium Fin. Co. v. Employers Ins. of Wausau, of Wausau Am Mut. Co., 586 Fed.Appx. 713, 717 (2d Cir. 2014) (Second Circuit has “repeatedly reiterated the mandatory nature of prejudgment interest under § 5001(a) in non-equitable contract . . . cases.”). As a threshold matter, “[a] default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings.” Fed.R.Civ.P. 54(c). KeyBank states in its motion papers only that it “seeks judgment for the liquidated amount of $100,212.30[] plus statutory postjudgment interest.” Lim Decl. ¶10. However, KeyBank provided adequate notice to Defendants for prejudgment interest based on the language in its Complaint, which states that KeyBank “prays that the Court enter judgment against Defendants . . . in the [amount requested] plus interest, costs, reasonable attorney's fees and any such other relief that this Court deems equitable and just.” Compl. at 5; see Howard v. Freedman, No. 12-CV-5263 (PGG) (HBP), 2016 WL 5417884, at *9, ¶ 64 (S.D.N.Y. July 21, 2016) (amended complaint seeking award of “no less than $3.5 million, plus interest” sufficient to put Defendants on notice for plaintiff seeking prejudgment interest), adopted by 2016 WL 5468300 (Sept. 28, 2016). Accordingly, because KeyBank gave notice that it was seeking interest, an award of prejudgment interest would not “differ in kind from, or exceed in amount” that which was demanded in its pleadings. Fed.R.Civ.P. 54(c); see also Capgemini U.S. LLC v. EC Manage Inc., No. 10-CV-2486 (GBD) (HBP), 2012 WL 5931837, at *6, ¶ 36 (S.D.N.Y. Nov. 7, 2012) (plaintiffs demand for relief of “plus interest” in complaint sufficient to put defendants on notice under Rule 54(c)), adopted by 2012 WL 5938590 (Nov. 27, 2012). Therefore, the undersigned will consider prejudgment interest to which KeyBank may be entitled as a matter of law.
“Prejudgment interest is computed as the ‘per diem interest rate' (principal x [interest rate] / 365) multiplied by the number of days in the prejudgment interest period.” Bolivar v. FIT Int'l Grp. Corp., No. 12-CV-781 (PGG) (DF), 2017 WL 11473766, at *23, n.16 (S.D.N.Y. Mar. 16, 2017) (citations omitted), adopted by 2019 WL 4565067 (Sept. 20, 2019). First, the statutory interest rate in New York is nine percent per annum pursuant to CPLR § 5004. See, e.g., Asesoral Business Partners, LLC v. Seatech Worldwide Corp., No. 19-CV-11512 (AJN) (SLC), 2021 WL 6755016, at *6-7 (S.D.N.Y. Dec. 16, 2021), adopted by 2022 WL 1265945 (Apr. 28, 2022). Therefore, the per diem interest rate in this case is equal to $23.32 (($94,566.30 x .09) / 365).
Second, interest in New York is generally “computed from the earliest ascertainable date the cause of action existed.” CPLR § 5001(b). However, when damages were “incurred at various times, interest shall be computed upon each item from the date it was incurred or upon all of the damages from a single reasonable intermediate date[,] . . . [and courts have] wide discretion in determining a reasonable date from which to award pre-judgment interest.” Asesoral Business Partners, LLC, 2021 WL 6755016, at *6 (cleaned up). In this case, KeyBank observes that “[o]n or about July 10, 2019, Color Express defaulted on[] its obligations under the Agreement, because it failed to make a payment when due on or about that date.” Barnes Decl. ¶ 11. However, the entire principal amount did not become due on that date. Rather, pursuant to the Agreement, only after the date of default was KeyBank entitled to “accelerate all payments under the Agreement” and/or “collect payment of all sums due plus the present value of sums that will become due plus . . . accrued tax obligations.” Agreement ¶ 14. Based on a review of the papers KeyBank submitted, it appears that KeyBank assessed the accelerated balance owed to have become due within ten days of October 21, 2020. See Barnes Decl. ¶ 13, Exh. E (Notice of Deficiency) at 1. Therefore, Color Express had at least until October 31, 2020, to submit its payment of the total principal amount owed to KeyBank.
Prior to this date, the record reflects that a balance of less than the total principal amount was due to KeyBank. See Surrender Letter at 1 (alerting Payeur that the accelerated amount due as of September 9, 2020 was $87,766.70).
Given the foregoing, the reasonable intermediate date is March 5, 2020, which is the midpoint between the first date of payment default (July 10, 2019) and the date on which KeyBank's papers indicate that the principal balance became due to KeyBank (October 31, 2020). See, e.g., Asesoral Business Partners, LLC, 2021 WL 6755016, at *7-8 (midpoint between when payment obligations arose appropriate to determine prejudgment interest) (collecting cases). Accordingly, KeyBank should be awarded prejudgment interest at a per diem interest rate of $23.32 from March 5, 2020 through the date final judgment is entered.
3. Statutory Post-Judgment Interest
KeyBank also seeks post-judgment interest. Lim Decl. ¶ 10. Post-judgment interest is mandatory pursuant to 28 U.S.C. § 1961. See, e.g., Westinghouse Credit Corp. v. D'Urso, 371 F.3d 96, 100 (2d Cir. 2004); Paravas v. Tran, No. 21-CV-807 (AJN) (KHP), 2022 WL 718842, at *12 (S.D.N.Y. Feb. 22, 2022), adopted by 2022 WL 718587 (Mar. 10, 2022). KeyBank is therefore entitled to post-judgment interest on all sums awarded, commencing when the Clerk of the Court enters judgment until the date of payment.
4. Costs
KeyBank also seeks reimbursement of $918.00 in costs associated with this litigation. Barnes Decl. ¶¶ 16-17. These costs include filing fees and process server fees. Id. Specifically, Barnes breaks the costs down as follows:
Id. No documentation was provided to support these claims.
Description
Amount
Filing Fees
$402.00
Process Server Fees
$516.00
“Fee awards normally include those reasonable out-of-pocket expenses incurred by the attorney and which are normally charged fee-paying clients.” Tr. of N.Y.C. Dist. Council of Carpenters Pension Fund, Welfare Fund, Annuity Fund v. B&L Moving & Installation, Inc., No. 16-CV-4734 (GBD) (JLC), 2017 WL 4277175, at *8 (S.D.N.Y. Sept. 26, 2017) (cleaned up), adopted by 2018 WL 705316 (Feb. 5, 2018). However, “the requesting party must substantiate the request for costs.” Guo v. Tommy's Sushi, Inc., No. 14-CV-3964 (PAE), 2016 WL 452319, at *3 (S.D.N.Y. Feb. 5, 2016).
As other courts have ruled, “[c]osts for shipping, filing fees, process servers, and litigation support are routinely recoverable.” See, e.g., Bank of America, N.A. v. Brooklyn Carpet Exchange, Inc., No. 15-CV-5981 (LGS) (DF), 2016 WL 8674686, at *11 (S.D.N.Y. May 13, 2016) (collecting cases), adopted by 2016 WL 3566237 (June 27, 2016). Although KeyBank has not substantiated the amount of these costs by providing original invoices or receipts or contemporaneously maintained billing records, which would have been the better practice, it submitted a sworn declaration confirming that its litigation costs amount to $918.00 (specifically, $402 for filing fees and $516 for process server fees). Barnes Decl. ¶ 16. This record is thus sufficient to support recovery of the requested costs. See, e.g., Gold Medal Produce, Inc. v. KNJ Trading Inc., No. 19-CV-3023 (AJN), 2021 WL 4555174, at *2 (S.D.N.Y. Oct. 5, 2021) (court filing fee recoverable without supporting documentation if verified by docket); Guo, 2016 WL 452319, at *3 (sworn statement or declaration under penalty of perjury that certain amounts were expended on particular items sufficient); Abel v. Town Sports Int'l LLC, No. 09-CV-10388 (DF), 2012 WL 6720919, at *34 (S.D.N.Y. Dec. 18, 2012) (declaration under penalty of perjury asserting payment for service of subpoenas “adequately support[s]” awarding that cost).
Accordingly, KeyBank should be awarded $918.00 in costs.
III. CONCLUSION
For the foregoing reasons, I recommend that the Court award KeyBank damages in the amount of $100,212.30 ($94,566.30 in outstanding principal; $4,728.00 in late fees pursuant to the terms of the Agreement; and $918.00 in costs), plus a per diem prejudgment interest rate of $23.32 from March 5, 2020 through the date final judgment is entered as well as post-judgment interest on all sums awarded, commencing when the Clerk of the Court enters judgment until the date of payment.
PROCEDURE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Analisa Torres, United States Courthouse, 500 Pearl Street, New York, NY 10007. Any requests for an extension of time for filing objections must be directed to Judge Torres.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).