Opinion
2018–13250 Index No. 703680/18
02-05-2020
Neal ARLUCK, Appellant, v. Olga BREZINSKA, Respondent.
Douglas & London, P.C., New York, NY (Randolph D. Janis of counsel), for appellant.
Douglas & London, P.C., New York, NY (Randolph D. Janis of counsel), for appellant.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Pam Jackman Brown, J.), entered October 24, 2018. The order, after an inquest on the issue of damages, sua sponte, directed the dismissal of the complaint.
ORDERED that on the Court's own motion, the notice of appeal from so much of the order as, sua sponte, directed the dismissal of the complaint is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701[c] ); and it is further,
ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for a new determination on the issue of damages.
In this action, inter alia, to recover damages for personal injuries, the defendant failed to appear or answer the complaint. In an order dated June 25, 2018, the Supreme Court granted the plaintiff's unopposed motion for leave to enter a default judgment against the defendant and directed an inquest on the issue of damages. After conducting the inquest, the court, in an order entered October 24, 2018, determined that the plaintiff had failed to establish, prima facie, that the defendant was negligent and that her negligence was a substantial factor in causing the plaintiff's injuries, and thereupon, sua sponte, directed the dismissal of the complaint. The plaintiff appeals.
By defaulting, the defendant admitted "all traversable allegations in the complaint, including the basic allegation of liability" ( Rokina Opt. Co. v. Camera King, 63 N.Y.2d 728, 730, 480 N.Y.S.2d 197, 469 N.E.2d 518 ; see Cole–Hatchard v. Eggers, 132 A.D.3d 718, 720, 18 N.Y.S.3d 100 ; Gonzalez v. Wu, 131 A.D.3d 1205, 1206, 16 N.Y.S.3d 768 ; Kouho v. Trump Vil. Section 4, Inc., 93 A.D.3d 761, 763, 941 N.Y.S.2d 186 ). As such, the sole issue to be determined at the inquest was the extent of the damages sustained by the plaintiff, and the Supreme Court should not have considered issues of liability (see Jihun Kim v. S & M Caterers, Inc., 136 A.D.3d 755, 756, 24 N.Y.S.3d 743 ; Gonzalez v. Wu, 131 A.D.3d at 1206, 16 N.Y.S.3d 768 ; Kouho v. Trump Vil. Section 4, Inc., 93 A.D.3d at 763, 941 N.Y.S.2d 186 ).
Accordingly, we reverse the order appealed from, and remit the matter to the Supreme Court, Queens County, for a new determination on the issue of damages.
RIVERA, J.P., CHAMBERS, MILLER and CONNOLLY, JJ., concur.