Phoenix Insurance v. Cohen

Appellate Division of the Supreme Court of New York

Phoenix Insurance v. Cohen

34 A.D.3d 775, 826 N.Y.S.2d 344

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

DecidedNovember 28, 2006

StatusPublished

Cited by1 cases

This text of 34 A.D.3d 775 (Phoenix Insurance v. Cohen) 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

Phoenix Insurance v. Cohen, 34 A.D.3d 775, 826 N.Y.S.2d 344 (N.Y. Ct. App. 2006).

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Opinion

In an action to recover damages for negligence, the defendant Eye to Eye Vision Centers appeals from a judgment of the Supreme Court, Suffolk County (Hudson, J.), entered December 8, 2005, which, after a nonjury trial on the issue of liability, is in favor of the plaintiff and against it in the principal sum of $168,225.25.

[776]*776Ordered that the judgment is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for a trial on the issue of damages. The findings of fact on the issue of liability are affirmed.

Reviewing the record as a whole, the Supreme Court did not err in finding the appellant negligent in the happening of the accident (see Weitzmann v Barber Asphalt Co., 190 NY 452 [1908]; Matter of Capizola v Vantage Intl., 2 AD3d 843 [2003]; Distribuidora Nacional De Disco of N.Y. v Rappaport, 92 AD2d 559 [1983]). However, on the record presented, there is no basis for the damage award. The sole issue at the nonjury trial was liability, and the record does not otherwise disclose a basis for the award. All of the arguments offered by the respondent in support of the same concern matters dehors the record. Thus, the judgment must be reversed and the matter remitted for a trial on the issue of damages. Adams, J.E, Ritter, Lunn and Covello, JJ., concur.

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In an action to recover damages for negligence, the defendant Eye to Eye Vision Centers appeals from a judgment of the Supreme Court, Suffolk County (Hudson, J.), entered December 8, 2005, which, after a nonjury trial on the issue of liability, is in favor of the plaintiff and against it in the principal sum of $168,225.25.

[776]*776Ordered that the judgment is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for a trial on the issue of damages. The findings of fact on the issue of liability are affirmed.

Reviewing the record as a whole, the Supreme Court did not err in finding the appellant negligent in the happening of the accident (see Weitzmann v Barber Asphalt Co., 190 NY 452 [1908]; Matter of Capizola v Vantage Intl., 2 AD3d 843 [2003]; Distribuidora Nacional De Disco of N.Y. v Rappaport, 92 AD2d 559 [1983]). However, on the record presented, there is no basis for the damage award. The sole issue at the nonjury trial was liability, and the record does not otherwise disclose a basis for the award. All of the arguments offered by the respondent in support of the same concern matters dehors the record. Thus, the judgment must be reversed and the matter remitted for a trial on the issue of damages. Adams, J.E, Ritter, Lunn and Covello, JJ., concur.

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Bluebook (online)

34 A.D.3d 775, 826 N.Y.S.2d 344, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phoenix-insurance-v-cohen-nyappdiv-2006.

Opinion

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