| D D & P Realty, Inc. v Robustiano |
| 2009 NY Slip Op 09578 [68 AD3d 1496] |
| December 24, 2009 |
| Appellate Division, Third Department |
| D D & P Realty, Inc., Appellant, v Gino Robustiano,Individually and Doing Business as Calabrese Masonry, et al.,Respondents. |
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Kane, J. Appeal from a judgment of the Supreme Court (Reilly, Jr., J.), entered May 11,2009 in Schenectady County, which awarded plaintiff damages from defendant GinoRobustiano, individually and doing business as Calabrese Masonry.
Plaintiff commenced this action alleging that defendants breached a contract by providingsubstandard work. Supreme Court entered a default judgment against defendants as to liabilityand ordered an inquest to determine damages (see CPLR 3215). After the inquest, thecourt held that defendant Gino Robustiano, individually and doing business as CalabreseMasonry, was liable to plaintiff for $32,000. The court, however, without the benefit of a motionto vacate the default, revisited its determination of liability against defendant Jarrod Haas,individually and doing business as J. Haas & Sons, and refused to impose any judgment againsthim. Plaintiff appeals.[FN*]
Supreme Court erred in reopening and redetermining the issue of Haas's liability (seeRokina Opt. Co. v Camera King, 63 NY2d 728, 730 [1984]; Christian v Hashmet Mgt.Corp., [*2]189 AD2d 597, 598 [1993]). By defaulting, Haaswas deemed to have admitted liability and should only have been permitted to contest theamount of damages at the inquest (see Amusement Bus. Underwriters v American Intl.Group, 66 NY2d 878, 880 [1985]; Rokina Opt. Co. v Camera King, 63 NY2d at730-731; McClelland v Climax Hosiery Mills, 252 NY 347, 351 [1930]). As no one hasappealed the amount of damages awarded, plaintiff is entitled to judgment against bothdefaulting defendants in that amount.
Cardona, P.J., Mercure, Spain and Lahtinen, JJ., concur. Ordered that the judgment ismodified, on the law, without costs, by reversing so much thereof as denied plaintiff's demandfor a judgment against defendant Jarrod Haas, individually and doing business as J. Haas &Sons, and, as so modified, affirmed.
Footnote *: Plaintiff also filed a notice ofappeal from Supreme Court's decision. However no appeal lies from a decision (seeCPLR 5512 [a]).