| Quigley v Coco's Water Caf|fe, Inc. |
| 2007 NY Slip Op 06970 [43 AD3d 1132] |
| September 25, 2007 |
| Appellate Division, Second Department |
| Michael Quigley, Respondent, v Coco's Water Café,Inc., Defendant, and Nicholas Aiello, Appellant. |
—[*1] Troy & Troy, P.C., Ronkonkoma, N.Y. (James J. Troy and William J. Troy III of counsel),for respondent.
In an action to recover damages for personal injuries, the defendant Nicholas Aiello appeals(1), as limited by his brief, from so much of an order of the Supreme Court, Suffolk County(Molia, J.), dated August 10, 2006, as, in effect, held in abeyance that branch of his motionwhich was to vacate a judgment of the same court entered July 27, 2005, which, upon his defaultin answering, is in favor of the plaintiff and against him in the principal sum of $175,000, untilafter a determination of his motion pursuant to Criminal Procedure Law article 440 to vacate anunderlying judgment of the District Court, Suffolk County, rendered March 19, 1999, convictinghim of assault in the third degree, and (2) an order of the same court dated December 7, 2006,which, in effect, denied his motion for leave to renew and reargue that branch of his prior motionwhich was to vacate the judgment entered July 27, 2005.
Ordered that the appeal from the order dated August 10, 2006 is dismissed, without costs ordisbursements; and it is further,[*2]
Ordered that the appeal from so much of the order datedDecember 7, 2006 as denied that branch of the appellant's motion which was for leave to reargueis dismissed, without costs or disbursements, as no appeal lies from an order denyingreargument; and it is further,
Ordered that the order dated December 7, 2006 is reversed insofar as reviewed, on the lawand in the exercise of discretion, with costs, the branch of the appellant's motion which was forleave to renew is granted, and upon renewal, the motion to vacate the judgment entered July 27,2005 is granted, the judgment is vacated, and the matter is remitted to the Supreme Court,Suffolk County, for a new assessment of damages, to be made after an inquest held upon noticeto the appellant.
The order dated August 10, 2006 did not decide the branch of the motion of the defendantNicholas Aiello which was to vacate the judgment entered against him upon his default inanswering. Accordingly, no appeal lies as of right from that portion of the order (seeCPLR 5701 [a] [2] [v]; Acunto vStewart Ave. Gardens, LLC, 26 AD3d 305 [2006]; Rosen v Swarzman, 296AD2d 392 [2002]; Avis Rent-A-Car Sys. v Edmin Realty Corp., 209 AD2d 656 [1994];Matter of Fritsch v Westchester County Dept. of Transp., 170 AD2d 602 [1991]).
However, upon the appeal from so much of the order dated December 7, 2006, as denied thatbranch of the appellant's motion which was for leave to renew his prior motion to vacate thejudgment entered upon his default, under the circumstances of this case we deem it appropriate toexercise our discretion and grant that branch of the motion (see Halle v Fernandez, 286AD2d 662 [2001]; see also Bank One vMon Leang Mui, 38 AD3d 809 [2007]; Goyzueta v Urban Health Plan, 256AD2d 307 [1998]; Strong v Brookhaven Mem. Hosp. Med. Ctr., 240 AD2d 726 [1997])."It has long been held that courts have inherent power beyond that which is contained in theCPLR . . . to open defaults . . . and where the amount awarded on adefault judgment has been perceived as excessive the courts have exercised their inherent powerto modify or reduce the amount" (Cervino v Konsker, 91 AD2d 249, 253 [1983]; see Bajwa v Saida, Inc., 6 AD3d471 [2004]; Westchester Med. Ctr. v Clarendon Ins. Co., 304 AD2d 753 [2003]).Indeed, "[a]n unwarranted and excessive award after inquest will not be sustained, as to dootherwise 'would be tantamount to granting the plaintiffs an "open season" at the expense of adefaulting defendant' " (Neuman v Greenblatt, 260 AD2d 616, 617 [1999], quotingBrosnan v Behette, 186 AD2d 165, 167 [1992]; see Bajwa v Saida, Inc., 6 AD3dat 471). Since the additional evidence presented by the appellant in support of that branch of hismotion which was for leave to renew raised an issue as to whether the damages awarded to theplaintiff after the inquest were excessive, the judgment entered upon his default should have beenvacated. Accordingly, we remit the matter to the Supreme Court, Suffolk County, for a newassessment of damages (see Halle v Fernandez, 286 AD2d 662 [2001], supra).
Motion by the respondent on appeals from two orders of the Supreme Court, Suffolk County,dated August 10, 2006 and December 7, 2006, respectively. By decision and order on motion ofthis Court dated May 23, 2007, that branch of the motion which was to dismiss the appeal fromthe order dated December 7, 2006, on the ground that no appeal lies from an order denyingreargument, was held in abeyance and referred to the Justices hearing the appeals fordetermination upon the argument or submission of the appeals.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, andupon the argument of the appeals, it is
Ordered that the branch of the motion which was to dismiss the appeal from the order datedDecember 7, 2006, on the ground that no appeal lies from an order denying reargument, is deniedas academic in light of our determination of the appeal. Schmidt, J.P., Santucci, Krausmanand McCarthy, JJ., concur.