| Taylor v Brooke Towers LLC |
| 2010 NY Slip Op 04113 [73 AD3d 535] |
| May 13, 2010 |
| Appellate Division, First Department |
| Frank Taylor III et al., Appellants, v Brooke Towers LLCet al., Respondents. |
—[*1] Goldberg & Carlton, PLLC, New York (Robert H. Goldberg of counsel), forrespondents.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered February 25, 2009,which denied plaintiffs' motion to set aside a prior order, same court and Justice, enteredSeptember 2, 2008, which, after inquest, awarded no damages and dismissed plaintiffs'complaint alleging a claim of infant lead poisoning, unanimously reversed, on the law, withoutcosts, the complaint reinstated, and the matter remanded for further proceedings consistent withthis decision.
As plaintiffs at the inquest presented evidence sufficient to set forth a prima facie case ontheir claim against defaulting defendants, the court's dismissal of the complaint based on afinding that they had failed to prove liability was erroneous (see Christian v Hashmet Mgt.Corp., 189 AD2d 597 [1993]; Lippman v Hines, 138 AD2d 845, 846 [1988]).Moreover, since defendants, who did not appear at the inquest, neither took an appeal from theorder granting the default judgment nor moved to vacate it, their liability was law of the case,and it was improper for the inquest court to have revisited the issue (see Cobb v City of NewYork, 272 AD2d 117, 118-119 [2000], lv denied 95 NY2d 760 [2000]; Christianv Hashmet Mgt. Corp., 189 AD2d at 598).
Accordingly, the court should have focused on the evidence of damages, and awardedplaintiff nominal damages, at least (see McClelland v Climax Hosiery Mills, 252 NY347, 351 [1930]; Suckenik v Levitt, 177 AD2d 416 [1991]). As the court neverconsidered the issue of damages, and the extent of the evidence on damages that was presentedby plaintiffs is unclear [*2]from the limited record on appeal, thematter is remanded for a determination of damages, if any, based on the evidence presented byplaintiffs at the inquest. Concur—Andrias, J.P., Catterson, Renwick, Richter andRomÁn, JJ.