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THE DEFENDANT IN THIS SLIP AND FALL CASE, WHOSE ANSWER HAD BEEN STRUCK, SHOULD HAVE BEEN ALLOWED TO PRESENT EVIDENCE ON DAMAGES (FIRST DEPT).

The Second Department, reversing Supreme Court, determined that, although defendant’s answer in this slip and fall case had been struck, the defendant should not have been precluded from presenting evidence on damages:

… Supreme Court … struck the answer and scheduled an inquest on the issue of damages. At the inquest, following direct testimony by the plaintiff, the court denied defense counsel’s request to cross-examine the plaintiff, since the defendant’s answer had been stricken. The court awarded the plaintiff damages in the principal sum of $267,221.77. …

“[A] defendant whose answer is stricken as a result of a default admits all traversable allegations in the complaint, including the basic allegation of liability, but does not admit the plaintiff’s conclusion as to damages” … . “Accordingly, where a judgment against a defaulting defendant is sought by motion to the court, the defendant is entitled, at an inquest to determine damages, to cross-examine witnesses, give testimony, and offer proof in mitigation of damages” … . Here, since the Supreme Court did not provide such an opportunity to the defendant, we remit the matter to the Supreme Court, Queens County, for a new inquest on the issue of damages … . Dejesus v H.E. Broadway, Inc., 2019 NY Slip Op 06743, Second Dept 9-25-19

 

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ALTHOUGH THE INFANT PLAINTIFF COULD NOT IDENTIFY THE CAUSE OF HER SLIP AND FALL; MOTHER, FATHER AND THE DEFENDANTS PROVIDED CIRCUMSTANTIAL EVIDENCE THAT THE FALL WAS CAUSED BY AN IDENTIFIED DEFECT IN THE SIDEWALK, RAISING A QUESTION OF FACT (SECOND DEPT).
RULING THAT DEFENDANT COULD BE CROSS-EXAMINED ABOUT THREE PRIOR GUN-RELATED CONVICTIONS IF HE TESTIFIED THE SHOOTING WAS AN ACCIDENT DID NOT DEPRIVE DEFENDANT OF THE RIGHT TO PUT ON A DEFENSE; TWO DISSENTERS DISAGREED (SECOND DEPT).
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THE DOCUMENTS RELIED UPON FOR THE REFEREE’S REPORT WERE LISTED BUT NOT SUBMITTED, RENDERING THE REPORT INADMISSIBLE HEARSAY (SECOND DEPT).
REQUEST WAS PROPERLY DEEMED AN APPLICATION FOR AN AREA VARIANCE, NOT A USE VARIANCE, AND WAS PROPERLY GRANTED, CRITERIA EXPLAINED (SECOND DEPT).
PLAINTIFF CONTRACTOR DID NOT ALLEGE IT WAS LICENSED TO DO HOME IMPROVEMENT WORK IN ITS COMPLAINT ALLEGING BREACH OF CONTRACT AND SEEKING TO FORECLOSE ON A MECHANIC’S LIEN, THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT). ​

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