Eisig v Weinstein

[*1] Eisig v Weinstein 2010 NY Slip Op 51187(U) [28 Misc 3d 128(A)] Decided on July 7, 2010 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through December 8, 2010; it will not be published in the printed Official Reports.

Decided on July 7, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : STEINHARDT, J.P., PESCE and RIOS, JJ
2009-1004 K C.

Sarah Eisig, Respondent,

against

Eli Weinstein, Defendant, -and- Celia Weinstein, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered November 25, 2008, deemed from a judgment of the same court entered January 12, 2009. The judgment, following an inquest, awarded plaintiff the principal sum of $75,000 as against defendant Celia Weinstein. The appeal from the judgment brings up for review the order entered November 25, 2008, which denied defendant Celia Weinstein's motion to open her default and to restore the case to the trial calendar.

ORDERED that the judgment is reversed without costs, so much of the order entered November 25, 2008 as denied the branch of defendant Celia Weinstein's motion seeking to open her default in appearing at the inquest is vacated, said branch of defendant Celia Weinstein's motion is granted, and the matter is remitted to the Civil Court for a new inquest.

Plaintiff brought this personal injury action in Supreme Court, Kings County, after she slipped on ice at premises owned by defendant Celia Weinstein and her ex-husband, defendant Eli Weinstein. Initially, both defendants defaulted and plaintiff moved for a default judgment; however, after Eli Weinstein appeared and answered, plaintiff's motion for a default judgment was withdrawn insofar as it was against him. Eli Weinstein moved for summary judgment dismissing the complaint and ultimately prevailed on appeal, upon findings by the Appellate Division that he had established that he had no actual or constructive notice of the existence of the ice on which plaintiff allegedly slipped and fell, and had not created the icy condition, and that plaintiff, in opposition, had failed to raise a triable issue of fact (Eisig v Weinstein, 279 AD2d 549 [2001]). However, by order entered on or about September 1, 1999, plaintiff's motion for a default judgment was granted against Celia Weinstein, with a notice that the matter would be set down for inquest against said defendant on the issue of damages.

The action had apparently been stayed pending the appeal of the order disposing of Eli Weinstein's motion for summary judgment. By order of the Supreme Court, Kings County, dated July 18, 2003 (Michael Ambrosio, J.), the stay was lifted, and it was ordered that the case be set [*2]down for a hearing before a judicial hearing officer on the issue of damages, upon plaintiff serving and filing a notice of inquest and paying the appropriate fee. On May 6, 2004, plaintiff apparently filed two separate "notices for trial" in Supreme Court.

In July 2005, Celia Weinstein moved to, among other things, vacate the order granting plaintiff's motion for a default judgment, and to dismiss the complaint. Following a traverse hearing, by order dated January 18, 2006, the Supreme Court determined that Celia Weinstein had been properly served and that the matter would proceed to "trial" against her. Celia Weinstein filed a notice of appeal from this order and moved in Supreme Court for reconsideration. The motion for reconsideration was denied. Celia Weinstein's appeal was never perfected, and is deemed abandoned (see Rules of App Div, 2d Dept [22 NYCRR] § 670.8 [g]).

In 2006, the case was transferred to the Civil Court pursuant to CPLR 325 (d). There, Eli Weinstein's attorneys were erroneously listed in court records as representing defendant Celia Weinstein, who has actually proceeded pro se throughout this litigation. Celia Weinstein alleged, and it is uncontested, that she never received notice of any of the proceedings in Civil Court. After several adjournments, on July 24, 2008 an inquest was held before a judicial hearing officer, at which Celia Weinstein did not appear, and it was recommended that judgment be entered against her in the sum of $75,000. In August 2008, prior to the entry of judgment, Celia Weinstein moved to vacate the "judgment" and restore the case to the calendar; she also sought dismissal of the action on the grounds, among others, that she had not been properly served and that she was entitled to dismissal of the action because it had been dismissed against her ex-husband. By order entered November 25, 2008, Celia Weinstein's motion was denied, and judgment was entered against her on January 12, 2009 in the principal sum of $75,000.

On appeal, Celia Weinstein asserts that the Civil Court erred in refusing to vacate the order granting plaintiff's motion for a default judgment with regard to her liability to plaintiff. However, all the issues raised here with respect to service on Celia Weinstein as well as her substantive defenses to this action either were or could have been raised in her appeal to the Appellate Division, Second Department, of the Supreme Court's order of January 18, 2006. Having abandoned her first appeal, Celia Weinstein is precluded from pursuing the same issues here (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750 [1999]).

Celia Weinstein also challenges the $75,000 judgment on the ground of its magnitude, and because she alleges that she was not afforded an opportunity to appear and defend at the inquest. Cases transferred to Civil Court from Supreme Court pursuant to CPLR 325 (d) are not subject to the limitation of monetary jurisdiction of the Civil Court, so that a $75,000 judgment was statutorily permissible. [*3]

Nevertheless, even though by defaulting in answering Celia Weinstein conceded liability, she did not concede the amount of damages. As a party who had appeared, Celia Weinstein had a right to appear and defend at the inquest of this matter (see Reynolds Sec. v Underwriters Bank & Trust Co, 44 NY2d 568, 572 [2006]; Kocsis v McLean, 32 AD3d 589, 590 [2006] ["a defaulting defendant admits only the traversable allegations in the complaint and remains entitled at an inquest to offer proof in mitigation of damages"]; Siegel, NY Prac §§ 293, 295, 296 [4th ed]). It was undisputed that she was not given prior notice of the inquest, and, thus, was deprived of this right. In these circumstances, we conclude that the Civil Court erred in refusing to vacate the inquest award against Celia Weinstein (see Sabeti v Aminpour, 59 AD3d 422 [2009]). Accordingly, the judgment is reversed, so much of the order entered November 25, 2008 as denied the branch of defendant Celia Weinstein's motion seeking to open her default in appearing at the inquest is vacated, said branch of the motion is granted, and the matter is remitted to the Civil Court for a new inquest.

Steinhardt, J.P., Pesce and Rios, JJ., concur.
Decision Date: July 07, 2010