Mafes v. City of New York

Appellate Division of the Supreme Court of New York

Mafes v. City of New York

120 A.D.3d 999, 991 N.Y.S.2d 765

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 4, 2014

Docket14093/05 -12401A 12401 12400

StatusPublished

This text of 120 A.D.3d 999 (Mafes v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mafes v. City of New York, 120 A.D.3d 999, 991 N.Y.S.2d 765 (N.Y. Ct. App. 2014).

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Opinion

Judgment, Supreme Court, Bronx County (Lucindo Suarez, J), entered July 26, 2013, to the extent appealed from, awarding plaintiff damages as against defendant Lincoln Tugwell, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered July 26, 2013, after an inquest, unanimously dismissed, without costs, as subsumed in the appeal from the judgment. Order, same court (Barry Salman, J.), entered October 24, 2013, which denied defendant’s motion for reargument and sanctions against plaintiffs counsel, or, in the alternative, an extension of time to demonstrate a meritorious defense to the action, unanimously affirmed, insofar as it denied sanctions or an extension of time, and appeal therefrom otherwise dismissed, without costs, as taken from a nonappealable paper.

Defendant requests that we exercise our “interest of justice power to correct a fundamental error” that his counsel failed to raise at the inquest, i.e., that damages have been awarded against him for conduct not attributed to him in the complaint (citing Peguero v 601 Realty Corp., 58 AD3d 556, 563 [1st Dept 2009] [an error “so fundamental as to preclude consideration of the central issue upon which the claim of liability is founded” may be reviewed in the interests of justice, even absent objection]). However, since the inquest was held upon his default, defendant’s liability was not at issue therein; he is deemed to have admitted it (see Wilson v Galicia Contr. & Restoration Corp., 10 NY3d 827, 830 [2008]). In the circumstances, our going outside applicable law to entertain arguments not preserved for appeal *1000 would not further the objective of “ensuring] that plaintiffs do not secure money judgments based on fraudulent claims” (id.).

No appeal lies from the denial of a motion for leave to reargue (Belok v New York City Dept. of Hous. Preserv. & Dev., 89 AD3d 579 [1st Dept 2011]).

We have considered defendant’s remaining contentions and find them without merit.

Concur — Gonzalez, EJ., Mazzarelli, Sweeny, Manzanet-Daniels and Clark, JJ.

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Judgment, Supreme Court, Bronx County (Lucindo Suarez, J), entered July 26, 2013, to the extent appealed from, awarding plaintiff damages as against defendant Lincoln Tugwell, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered July 26, 2013, after an inquest, unanimously dismissed, without costs, as subsumed in the appeal from the judgment. Order, same court (Barry Salman, J.), entered October 24, 2013, which denied defendant’s motion for reargument and sanctions against plaintiffs counsel, or, in the alternative, an extension of time to demonstrate a meritorious defense to the action, unanimously affirmed, insofar as it denied sanctions or an extension of time, and appeal therefrom otherwise dismissed, without costs, as taken from a nonappealable paper.

Defendant requests that we exercise our “interest of justice power to correct a fundamental error” that his counsel failed to raise at the inquest, i.e., that damages have been awarded against him for conduct not attributed to him in the complaint (citing Peguero v 601 Realty Corp., 58 AD3d 556, 563 [1st Dept 2009] [an error “so fundamental as to preclude consideration of the central issue upon which the claim of liability is founded” may be reviewed in the interests of justice, even absent objection]). However, since the inquest was held upon his default, defendant’s liability was not at issue therein; he is deemed to have admitted it (see Wilson v Galicia Contr. & Restoration Corp., 10 NY3d 827, 830 [2008]). In the circumstances, our going outside applicable law to entertain arguments not preserved for appeal *1000 would not further the objective of “ensuring] that plaintiffs do not secure money judgments based on fraudulent claims” (id.).

No appeal lies from the denial of a motion for leave to reargue (Belok v New York City Dept. of Hous. Preserv. & Dev., 89 AD3d 579 [1st Dept 2011]).

We have considered defendant’s remaining contentions and find them without merit.

Concur — Gonzalez, EJ., Mazzarelli, Sweeny, Manzanet-Daniels and Clark, JJ.

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Bluebook (online)

120 A.D.3d 999, 991 N.Y.S.2d 765, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mafes-v-city-of-new-york-nyappdiv-2014.

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