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Ashford v. Parrino

Supreme Court of New York, First Department

June 17, 2013

Delores ASHFORD, Plaintiff
v.
Joseph G. PARRINO, As Administrator for the Estate of Ellena M. Parrino, Defendant-Respondent. No. 570822/12.

Editorial Note:

This decision has been referenced in a table in the New York Supplement.

Plaintiff appeals from a judgment of the Civil Court of the City of New York, New York County (Robert R. Reed, J.), entered March 8, 2012, after inquest, in favor of defendant dismissing the complaint.

Present: LOWE, III, P.J., SCHOENFELD, TORRES, JJ.

PER CURIAM.

Judgment (Robert R. Reed, J.), entered March 8, 2012, reversed, without costs, complaint reinstated, and matter remanded for a new inquest.

By failing to appear in the action, defendant admitted " all traversable allegations in the [endorsed] complaint, including the basic allegation of liability" ( Rokina Optical Co. v. Camera King, 63 N.Y.2d 728, 730 [1984] ). Thus, the inquest court should not have re-opened the issue of liability and made a determination with respect thereto ( see Christian v. Hashmet Mgt. Corp., 189 A.D.2d 597, 598 [1993] ). In any event, the evidence presented at inquest by the pro se plaintiff adequately substantiated her claim for the return of moneys entrusted to defendant's decedent. To the extent the inquest court appears to have invoked the doctrine of unclean hands to deny plaintiff recovery, the record does not establish that plaintiff's cause of action was " founded in illegality or immorality" ( Seagirt Realty Corp. v. Chazanof, 13 N.Y.2d 282, 285 [1963][emphasis in original]; see O'Neill v. Pinkowski, 92 A.D.3d 1063, 1065 [2012] ), or that plaintiff engaged in misconduct that would provide the decedent-shown to have served as nothing more than a bailee or escrowee of the funds-a refuge from liability ( see Southwestern Shipping Corp. v. National City Bank, 6 N.Y.2d 454, 460 [1959]; see and compare McConnell v. Commonwealth Pictures Corp., 7 N.Y.2d 465 [1960] ). In this posture, and since the inquest court did not address the issue of damages, we are constrained to order a new inquest.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.


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