D D P Realty v. Robustiano

Full title: D D P REALTY, INC., Appellant, v. GINO ROBUSTIANO, Individually and Doing…

Court: Appellate Division of the Supreme Court of New York, Third Department

Date published: Dec 24, 2009

68 A.D.3d 1496 (N.Y. App. Div. 2009)

2009 N.Y. Slip Op. 9578

890 N.Y.S.2d 363

Opinion

No. 506755.

December 24, 2009.

Appeal from a judgment of the Supreme Court (Reilly, Jr., J.), entered May 11, 2009 in Schenectady County, which awarded plaintiff damages from defendant Gino Robustiano, individually and doing business as Calabrese Masonry.

Parisi, Coan Saccocio, P.L.L.C., Schenectady (Patrick J. Saccocio of counsel), for appellant.

Before: Cardona, P.J., Mercure, Spain and Lahtinen, JJ., concur.

Kane, J.

Plaintiff commenced this action alleging that defendants breached a contract by providing substandard work. Supreme Court entered a default judgment against defendants as to liability and ordered an inquest to determine damages ( see CPLR 3215). After the inquest, the court held that defendant Gino Robustiano, individually and doing business as Calabrese Masonry, was liable to plaintiff for $32,000. The court, however, without the benefit of a motion to vacate the default, revisited its determination of liability against defendant Jarrod Haas, individually and doing business as J. Haas Sons, and refused to impose any judgment against him. Plaintiff appeals.^_

_ Plaintiff also filed a notice of appeal from Supreme Court's decision. However no appeal lies from a decision ( see CPLR 5512 [a]).

Supreme Court erred in reopening and redetermining the issue of Haas's liability ( see Rokina Opt. Co. v Camera King, 63 NY2d 728, 730; Christian v Hashmet Mgt. Corp., 189 AD2d 597, 598). By defaulting, Haas was deemed to have admitted liability and should only have been permitted to contest the amount of damages at the inquest ( see Amusement Bus. Underwriters v American Intl. Group, 66 NY2d 878, 880; Rokina Opt. Co. v Camera King, 63 NY2d at 730-731; McClelland v Climax Hosiery Mills, 252 NY 347, 351 [1930]). As no one has appealed the amount of damages awarded, plaintiff is entitled to judgment against both defaulting defendants in that amount.

Ordered that the judgment is modified, on the law, without costs, by reversing so much thereof as denied plaintiffs demand for a judgment against defendant Jarrod Haas, individually and doing business as J. Haas Sons, and, as so modified, affirmed.