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DEFENDANT DEFAULTED IN THIS CHILD VICTIMS ACT CASE ALLEGING HE SEXUALLY ABUSED PLAINTIFF; DEFENDANT SHOULD NOT HAVE BEEN ALLOWED TO DENY THE ABUSE IN THE DAMAGES TRIAL; NEW DAMAGES TRIAL ORDERED (SECOND DEPT). ​

The Second Department, ordering a new trial on damages, determined defendant, who had defaulted in this Child Victims Act case alleging sexual abuse of the plaintiff by the defendant, should not have been allowed to deny the abuse in the damages trial:

…Supreme Court erred in permitting the defendant to testify that the plaintiff’s allegations of sexual abuse were untrue and that he had never sexually abused the plaintiff. The testimony violated the court’s pretrial order expressly prohibiting such testimony. Moreover, a defaulting defendant “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, at a trial to determine the amount of a plaintiff’s real damages, the defendant will not be allowed to introduce evidence tending to defeat the plaintiff’s cause of action” … . The defendant’s testimony denying the basic allegation of liability prejudiced a substantial right of the plaintiff, as that issue had been decided in her favor, and possibly affected the jury’s verdict on the issue of damages. Accordingly, the court should have granted the plaintiff’s motion pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of damages in the interest of justice and for a new trial on the issue of damages … . Reilly v Grieco, 2025 NY Slip Op 05711, Second Dept 10-15-25

Practice Point: Here defendant defaulted in this Child Victims Act case but was allowed to deny the abuse in the damages trial. That was error requiring an new trial on damages.

 

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WHERE A FORECLOSURE ACTION IS TERMINATED BY A STIPULATION OF DISCONTINUANCE WITH PREJUDICE, THE STIPULATION CANNOT BE VACATED BY A MOTION, A PLENARY ACTION MUST BE BROUGHT (SECOND DEPT).
THE INSTANT FORECLOSURE ACTION WAS PRECLUDED BY A PRIOR FORECLOSURE ACTION WHICH HAD NOT BEEN DISCONTINUED (SECOND DEPT). ​
HERE THE DEFENDANT DID NOT COMPLETE THE TREATMENT REQUIRED BY THE PLEA AGREEMENT; THE GUILTY PLEA WAS THEREFORE INDUCED BY AN UNFULFILLED PROMISE WHICH USUALLY REQUIRES THAT THE PLEA BE VACATED; HERE SUPREME COURT FELT DEFENDANT SHOULD NOT HAVE BEEN TERMINATED BY THE TREATMENT PROGRAM AND PROPERLY EXERCISED DISCRETION IN FASHIONING A SENTENCE MUCH LESS THAN THAT REQUIRED BY THE PLEA AGREEMENT, LEAVING THE GUILTY PLEA IN PLACE (SECOND DEPT).
DEFENSE COUNSEL, BY TAKING A POSITION ADVERSE TO THAT OF THE DEFENDANT WITH RESPECT TO DEFENDANT’S PRO SE MOTION TO SET ASIDE THE VERDICT, DEPRIVED DEFENDANT OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, MATTER REMITTED FOR CONSIDERATION OF THE MOTION (SECOND DEPT).

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