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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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