Conteh v. Hand

234 A.D.2d 96, 650 N.Y.S.2d 723, 1996 N.Y. App. Div. LEXIS 12431

Opinion

—Judgment, Supreme Court, New York County (Beatrice Shainswit, J.), entered December 12, 1995, in favor of plaintiif in the amount of $142,030.09, unanimously reversed, on the law, without costs, and the matter remanded for a new inquest on damages.

Despite its earlier ruling that "[a]ny defenses regarding the measure of damages may be presented at the inquest”, the court, after the completion of plaintiff’s testimony, refused to permit defendants to call a witness at the inquest. It is well settled that by defaulting a defendant admits all traversable allegations in the complaint, including the basic allegation of liability, but does not admit the plaintiff’s conclusion as to damages. Unless the damages sought are for a sum certain, which can be determined by computation, the defaulting defendant must be given " 'a full opportunity to cross-examine witnesses, give testimony and offer proof in mitigation of damages’ ” (Rokina Opt. Co. v Camera King, 63 NY2d 728, 730, quoting Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568, 572). The court’s ruling deprived defendants of such full opportunity. Concur—Murphy, P. J., Milonas, Williams, Tom and Andrias, JJ.