| Rawlings v Gillert |
| 2013 NY Slip Op 02063 [104 AD3d 929] |
| March 27, 2013 |
| Appellate Division, Second Department |
| Sandra Rawlings, Respondent-Appellant, v JosephC. Gillert, Appellant-Respondent, et al., Defendants. |
—[*1] Donald S. Mazin, Larchmont, N.Y., for respondent-appellant.
In an action, inter alia, to partition real property and for an accounting, the defendantJoseph C. Gillert appeals, as limited by his brief, from so much of a judgment of theSupreme Court, Westchester County (Giacomo, J.), dated December 1, 2011, as, upon aninterlocutory judgment of the same court (Lefkowitz, J.) dated December 9, 2009, interalia, striking his pleadings for willfully failing to comply with court-ordered discoveryand setting the matter down for an inquest, and upon his appearance at an inquest,directed him to pay the plaintiff the sum of $474,753.84 and to remove the plaintiff'sname from a home equity line of credit, and the plaintiff cross-appeals, as limited by herbrief, from so much of the same judgment as failed to award her damages due todepreciation and loss of use of certain assets and for an attorney's fee.
Ordered that the judgment is reversed insofar as appealed and cross-appealed from,on the law, without costs or disbursements, and the matter is remitted to the SupremeCourt, Westchester County, for a new inquest on the issue of damages.
The plaintiff and the defendant Joseph C. Gillert (hereinafter Gillert) had an intimaterelationship and resided together in South Salem from March 2002 until late August2007. After the plaintiff moved out of the residence, she commenced the instant action topartition real property and for an accounting, alleging, inter alia, that she and Gillert eachpossessed an undivided 50% interest in the residence located in South Salem, a boat, anda car, and that she and Gillert were joint obligors on a home equity line of credit. AfterGillert's repeated, unexcused failure to meaningfully comply with multiple disclosurerequests and court orders, the Supreme Court, in an interlocutory judgment, struck hisanswer with counterclaims, set the matter down for an inquest to determine the parties'rights and interests in the assets, and directed Gillert to account for the loan proceeds.The Supreme Court also directed that the plaintiff be reimbursed for, among other things,the loss of use and enjoyment of the jointly held property, the property depreciationcaused by Gillert's delaying tactics, and the legal expenses she incurred because of hisrepeated violations of court orders. The interlocutory judgment was affirmed by thisCourt on appeal (Rawlings vGillert, 78 AD3d 806 [2010]).
At the inquest on damages, the plaintiff testified on her own behalf, presented [*2]testimony from a licensed real estate broker, andintroduced, inter alia, documents demonstrating, among other things, the amount she hadinvested in the residence and the amount she had withdrawn from the equity line of creditfor use toward her own personal and business expenses. The plaintiff, however, was notpermitted to introduce certain evidence supporting her claims for damages due todepreciation and loss of use. Gillert was permitted to cross-examine the plaintiff'switnesses, but was not permitted to give testimony or offer proof in mitigation of thealleged damages.
Based on the amount of money the plaintiff alleged to have invested in the residence,minus the amount of money she acknowledged withdrawing from the equity line ofcredit for her own personal and business expenses, the Supreme Court directed Gillert topay the plaintiff the sum of $474,753.84 from the sale of the residence and to remove hername from the equity line of credit. The Supreme Court also directed that the car andboat be sold, with the proceeds evenly divided. The Supreme Court declined to award theplaintiff damages for loss of use or depreciation of assets and refused to award theplaintiff an attorney's fee based on Gillert's delays and failure to disclose.
" '[A] defendant whose answer is stricken as a result of a default admits alltraversable allegations in the complaint, including the basic allegation of liability, butdoes not admit the plaintiff's conclusion as to damages' " (Napolitano v Branks,128 AD2d 686, 687 [1987], quoting Rokina Opt. Co. v Camera King, 63 NY2d728, 730 [1984]; see Abbas vCole, 44 AD3d 31, 33 [2007]). Indeed, where an entry of a default judgmentagainst a defendant is made after an application to the court, the defendant is entitled to a" 'full opportunity to cross-examine witnesses, give testimony and offer proof inmitigation of damages' " (Napolitano v Branks, 128 AD2d at 687, quotingReynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568, 572 [1978];see Godwins v Coggins, 280 AD2d 582, 582 [2001]).
Here, while Gillert was properly precluded from introducing evidence at the inquesttending to defeat the plaintiff's underlying claims, the Supreme Court should not havedivided the residence or allocated liability regarding the equity line of credit withoutgiving Gillert an opportunity to account for the loan proceeds or an opportunity tointroduce evidence or testimony relevant to economic damages (see Godwins vCoggins, 280 AD2d at 582-583; Grande v Grande, 129 AD2d 612, 613[1987]). The Supreme Court also erred in precluding the plaintiff from introducingevidence demonstrating that she sustained damages due to Gillert's delaying tactics.Indeed, in light of the finding of willful noncompliance and the specific directions as setforth in the interlocutory judgment, the plaintiff should have been permitted to submitevidence, including affidavits (see 22 NYCRR 202.46), supporting her claimsfor, among other things, depreciation, loss of use, and attorney's fees, at least insofar asthose alleged damages could be attributed to Gillert's failure to comply with disclosurerequests and court orders. Accordingly, a new inquest on the issue of damages must beconducted.
The parties' remaining contentions are without merit. Dillon, J.P., Angiolillo,Dickerson and Cohen, JJ., concur.