Phoenix Ins. Co. v Cohen

Phoenix Ins. Co. v Cohen 2006 NY Slip Op 08958 [34 AD3d 775] November 28, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 17, 2007

Phoenix Insurance Company, Respondent,
v
Allen Cohen, Defendant, and Eye To Eye Vision Centers, Appellant.

—[*1]In an action to recover damages for negligence, the defendant Eye to Eye Vision Centers appeals from a judgment of the Supreme Court, Suffolk County (Hudson, J.), entered December 8, 2005, which, after a nonjury trial on the issue of liability, is in favor of the plaintiff and against it in the principal sum of $168,225.25.

Ordered that the judgment is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for a trial on the issue of damages. The findings of fact on the issue of liability are affirmed.

Reviewing the record as a whole, the Supreme Court did not err in finding the appellant negligent in the happening of the accident (see Weitzmann v Barber Asphalt Co., 190 NY 452 [1908]; Matter of Capizola v Vantage Intl., 2 AD3d 843 [2003]; Distribuidora Nacional De Disco of N.Y. v Rappaport, 92 AD2d 559 [1983]). However, on the record presented, there is no basis for the damage award. The sole issue at the nonjury trial was liability, and the record does not otherwise disclose a basis for the award. All of the arguments offered by the respondent in support of the same concern matters dehors the record. Thus, the judgment must be reversed and the matter remitted for a trial on the issue of damages. Adams, J.P., Ritter, Lunn and Covello, JJ., concur.