Opinion
No. 2020-01641 Index No. 14059/16
03-29-2023
Youngja Lee, appellant, v. Hong Kong Supermarket, et al., defendants.
Steven Louros, New York, NY, for appellant.
Steven Louros, New York, NY, for appellant.
REINALDO E. RIVERA, J.P. JOSEPH J. MALTESE WILLIAM G. FORD JANICE A. TAYLOR, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Pam Jackman Brown, J.), dated August 20, 2019. The order, after an inquest on the issue of damages, directed the dismissal of the complaint.
ORDERED that on the Court's own motion, the notice of appeal from the order is deemed to be an application for leave to appeal, 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 further proceedings consistent herewith.
In this action to recover damages for personal injuries, the defendants failed to appear or answer the complaint. In an order dated November 30, 2018, the Supreme Court granted the plaintiff's unopposed motion for leave to enter a default judgment against the defendants, and directed an inquest on the issue of damages. After conducting the inquest, the court found, inter alia, that the plaintiff had failed to proffer credible evidence that the accident occurred or that she had sustained an injury that was caused by the defendants, and directed the dismissal of the complaint. The plaintiff appeals.
By defaulting, the defendants 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; see Cole-Hatchard v Eggers, 132 A.D.3d 718, 720; Gonzalez v Wu, 131 A.D.3d 1205, 1206; Kouho v Trump Vil. Section 4, Inc., 93 A.D.3d 761, 763). 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; Gonzalez v Wu, 131 A.D.3d at 1206; Kouho v Trump Vil. Section 4, Inc., 93 A.D.3d at 763).
Accordingly, we reverse the order appealed from, and remit this matter to the Supreme Court, Queens County, for a new inquest on the issue of damages.
RIVERA, J.P., MALTESE, FORD and TAYLOR, JJ., concur.