Arent Fox Kintner Plotkin & Kahn, PLLC v. Lurzer GmbH

297 A.D.2d 590, 747 N.Y.2d 179, 747 N.Y.S.2d 179, 2002 N.Y. App. Div. LEXIS 8766

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 24, 2002
• Status: Published

Opinion

It is well settled that a default judgment may be determinative of liability but not the amount of damages to be awarded, unless there can be no dispute as to the amount due, the amount sought being a “sum certain” (see Rokina Opt. Co. v Camera King, 63 NY2d 728, 730; Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568; see also CPLR 3215 [a]). Accordingly, inasmuch as claims for attorneys’ fees, such has those made in this action, are not ordinarily amenable to characterization as claims for “sums certain” (see e.g. Albert I. Lonstein, P.C. v Seeman, 112 AD2d 566; see also Reynolds Sec., supra at 572) — and, indeed, the record indicates that the amount due plaintiff is and has, in fact, been a subject of ongoing dispute between the parties — the motion court properly directed an inquest as to damages.

We have considered plaintiffs remaining contention and find it unavailing. Concur — Nardelli, J.P., Saxe, Buckley, Ellerin and Marlow, JJ.