MEARS v. LONG (2019)

DECISION & ORDER

In an action, inter alia, to recover damages for breach of fiduciary duty and conversion, the defendants appeal from a judgment of the Supreme Court, Suffolk County (James C. Hudson, J.), entered April 19, 2017.  The judgment, upon an order of the same court dated May 14, 2015, granting the plaintiffs' motion pursuant to CPLR 3126 to strike the defendants' answer and for leave to enter a default judgment against them based on their failure to comply with court-ordered discovery, and upon an inquest, is in favor of the plaintiffs and against the defendant Christopher Long in the principal sum of $ 79,114.26, and is in favor of the plaintiffs and against the defendants Steven Long, Christopher Isaza, and 950 South 2nd Realty Corp. in the principal sum of $ 40,291.99.

ORDERED that the judgment is affirmed, with costs.

In June 2013, the plaintiffs commenced this action, inter alia, to recover damages for breach of fiduciary duty and conversion.  In an order dated May 14, 2015, the Supreme Court granted the plaintiffs' motion pursuant to CPLR 3126 to strike the defendants' answer and for leave to enter a default judgment against them based on their failure to comply with court-ordered discovery.  On a prior appeal, this Court affirmed the order dated May 14, 2015 (see Mears v. Long, 149 A.D.3d 823, 52 N.Y.S.3d 124).

After an inquest, at which the plaintiff Robert Mears and the defendants Christopher Long, Steven Long, and Christopher Isaza testified, the Supreme Court awarded the plaintiffs the principal sum of $ 29,638.57 against Christopher Long on the first cause of action, the principal sum of $ 35,851.99 against all defendants on the second and third causes of action, the principal sum of $ 4,440 against all defendants on the fourth and fifth causes of action, the principal sum of $ 438.94 against Christopher Long on the seventh cause of action, the principal sum of $ 550 against Christopher Long on the eighth cause of action, and the principal sum of $ 8,194.76 against Christopher Long on the ninth cause of action.  The defendants appeal from a judgment in favor of the plaintiffs and against the defendants in those principal sums.  We affirm.

The defendants' contention that the plaintiffs' claims should have been addressed in a prior related action is without merit.  Upon the striking of their answer for failure to comply with court-ordered discovery, the defendants admitted all traversable allegations in the complaint, including the basic allegation of liability (see Rokina Opt. Co. v. Camera King, 63 N.Y.2d 728, 730, 480 N.Y.S.2d 197, 469 N.E.2d 518;  Shah v. Oral Cancer Prevention Intl., Inc., 138 A.D.3d 722, 724, 30 N.Y.S.3d 154;  Jihun Kim v. S & M Caterers, Inc., 136 A.D.3d 755, 756, 24 N.Y.S.3d 743).

In reviewing a determination made after a nonjury trial, the power of this Court is as broad as that of the trial court, and a judgment may be rendered if warranted by the facts, bearing in mind that in a close case, the trial judge had the advantage of seeing the witnesses and hearing the testimony (see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809;  Jeffers v. Stein, 152 A.D.3d 754, 754, 60 N.Y.S.3d 63).  Here, the Supreme Court's determination regarding the plaintiffs' damages, which is based, in part, upon credibility determinations, is supported by the record and warranted by the facts, and should not be disturbed (see Mad Den, Inc. v. Vaccarino, 151 A.D.3d 712, 713, 56 N.Y.S.3d 522;  Iordanou v. AJK Indus., Inc., 129 A.D.3d 1028, 10 N.Y.S.3d 884).

BALKIN, J.P., AUSTIN, LASALLE and IANNACCI, JJ., concur.