Opinion
May 24, 2001.
Order, Supreme Court, New York County (Richard Lowe III, J.), entered September 19, 2000, which, inter alia, denied defendants' application to vacate a judgment, entered July 10, 2000, and an order, entered June 30, 2000, granting plaintiff a default judgment against defendants by awarding him $103,080.66, and to restore the matter to the trial calendar, pursuant to CPLR 3215, for an inquest on damages, unanimously reversed, on the law, without costs, the motion to vacate granted as to both the July 10, 2000 judgment and the June 30, 2000 order, and the matter restored to the trial calendar for a proper inquest on damages.
Adam D. White, for plaintiff-respondent.
Michael I. Josephs, for defendants-appellants.
Before: Williams, J.P., Wallach, Lerner, Rubin, Friedman, JJ.
Where a defendant has defaulted in an action and the subsequent assessment of damages requires extrinsic proof, such defendant must have "a full opportunity to cross-examine witnesses, give testimony and offer proof in mitigation of damages" (Rokina Opt. Co. v. Camera King, 63 N.Y.2d 728, 730 [cite omitted]; Conteh v. Hand, 234 A.D.2d 96). Thus, here, the motion court erred in holding an inquest on submissions only without defendant having first defaulted on a formal inquest proceeding (22 NYCRR § 202.46[a]), and defendants are entitled to the requested relief (see, Byron O. Taxi, Inc. v. Swartz, 278 A.D.2d 108, 717 N.Y.S.2d 591).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.