Newhouse v. Davis

2019 NY Slip Op 2634

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 4, 2019
• Docket: 8910 100123/14
• Status: Published

Opinion

Newhouse v Davis (2019 NY Slip Op 02634)

Newhouse v Davis

2019 NY Slip Op 02634

Decided on April 4, 2019

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 4, 2019
Friedman, J.P., Gische, Kapnick, Webber, Gesmer, JJ.

8910 100123/14

[*1]Elliot Newhouse, Plaintiff-Appellant,

v

Lowell B. Davis, Defendant-Respondent.

Gary A. Lichtman, New York, for appellant.

Lowell B. Davis, Carle Place, respondent pro se.

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered December 14, 2017, which denied plaintiff's motion to set aside a prior order, same court and Justice, rendered August 2, 2017, which dismissed the complaint, unanimously reversed, on the law, without costs, the motion granted, the complaint reinstated, and the matter remanded for an inquest to determine damages.

Defendant, having had his answer stricken, was limited to an inquest at which he could only contest the extent of plaintiff's damages (see Rokina Opt. Co. v Camera King , 63 NY2d 728, 730-731 [1984]). Thus, the inquest court improperly re-opened the issue of liability and made a determination with respect thereto (see Christian v Hashmet Mgt. Corp. , 189 AD2d 597, 598 [1993]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 4, 2019

CLERK