Kaya v Floyd

[*1] Kaya v Floyd 2013 NY Slip Op 51664(U) Decided on October 11, 2013 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 11, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Torres, JJ
570549/13.

Ella Raissa Kaya, Plaintiff-Appellant,

against

Jeddy Floyd and Jonathan Floyd,

OCTOBER 11, 2013 SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT September 2013 Term Lowe, III, P.J., Shulman, Torres, JJ.Ella Raissa Kaya,NY County Clerk's No. Plaintiff-Appellant,570549/13 -against- Jeddy Floyd and Jonathan Floyd,Calendar No. 13-299 Defendants-Respondents. Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Gerald Lebovits, J.), entered August 23, 2012, which denied her motion, in effect, to vacate so much of a default judgment, entered after inquest, as limited her recovery to the sum of $250.Per Curiam. Order (Gerald Lebovits, J.), entered August 23, 2012, reversed, without costs, motion granted and matter remanded to Civil Court for an inquest. Upon defendants' failure to appear in this small claims action, the court referred the matter to a referee to hold an inquest, and to hear and report her findings to the court (see CPLR 3215[b]). Following the inquest, the referee issued a "report" that, without explanation, awarded plaintiff a small fraction of the damages sought for the loss of her automobile. So far as shown, no "findings of facts [or] conclusions of law" (CPLR 4320[b]) were made by the referee, nor were the inquest proceedings transcribed (id.). In this posture, and since the incomplete state of the record precludes any effective appellate review of the matter, we are constrained to order a new inquest (see Murphy v Murphy, 144 AD2d 904 [1988]; Hynard v Apt., Inc., 2001 NY Slip Op 40561[U][App Term, 1st Dept 2001]). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. Decision Date: October 11, 2013 Defendants-Respondents.

Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Gerald Lebovits, J.), entered August 23, 2012, which denied her motion, in effect, to vacate so much of a default judgment, entered after inquest, as limited her recovery to the sum of $250.

Per Curiam.

Order (Gerald Lebovits, J.), entered August 23, 2012, reversed, without costs, motion granted and matter remanded to Civil Court for an inquest.

Upon defendants' failure to appear in this small claims action, the court referred the matter to a referee to hold an inquest, and to hear and report her findings to the court (see CPLR 3215[b]). Following the inquest, the referee issued a "report" that, without explanation, awarded plaintiff a small fraction of the damages sought for the loss of her automobile. So far as shown, no "findings of facts [or] conclusions of law" (CPLR 4320[b]) were made by the referee, nor were the inquest proceedings transcribed (id.). In this posture, and since the incomplete state of the record precludes any effective appellate review of the matter, we are constrained to order a new inquest (see Murphy v Murphy, 144 AD2d 904 [1988]; Hynard v Apt., Inc., 2001 NY Slip Op 40561[U][App Term, 1st Dept 2001]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 11, 2013