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D D & P Realty, Inc. v. Robustiano

State of New York Supreme Court, Appellate Division Third Judicial Department


December 24, 2009

D D & P REALTY, INC., APPELLANT,
v.
GINO ROBUSTIANO, INDIVIDUALLY AND DOING BUSINESS AS CALABRESE MASONRY, ET AL., RESPONDENTS.

The opinion of the court was delivered by: Kane, J.

MEMORANDUM AND ORDER

Calendar Date: November 19, 2009

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

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.

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.*fn1

Supreme Court erred in reopening and redetermining the issue of Haas's liability (see Rokina Opt. Co. v Camera King, 63 NY2d 728, 730 [1984]; Christian v Hashmet Mgt. Corp., 189 AD2d 597, 598 [1993]). 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 [1985]; 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.

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

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


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