SABELLA v. KEORA REALTY LLC (2026)

DECISION & ORDER

In an action, inter alia, to recover on a promissory note, the plaintiff appeals from an order of the Supreme Court, Richmond County (Lizette Colon, J.), dated January 4, 2024.  The order, after an inquest on the issue of damages, determined that the plaintiff had not established his entitlement to damages and directed dismissal of the amended complaint.

ORDERED that the notice of appeal is deemed to be an application for leave to appeal, and leave to appeal is granted (see CPLR 5701[c] );  and it is further,

ORDERED that the order is reversed, on the law, and the matter is remitted to the Supreme Court, Richmond County, for a determination on the issue of damages in accordance herewith;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The plaintiff commenced this action to recover on a promissory note and asserted causes of action, inter alia, sounding in breach of contract and unjust enrichment.  In an order dated January 30, 2023, the Supreme Court struck the defendant's answer for failure to comply with discovery orders.  Following an inquest on the issue of damages, the court determined that the plaintiff had not established his entitlement to damages and directed dismissal of the amended complaint.  The plaintiff appeals.

“ ‘A defendant whose answer is stricken as a result of a default admits all traversable allegations in the complaint, including the basic allegation of liability, but does not admit the plaintiff's conclusion as to damages’ ” (Chalom v. Elat Car & Limousine Serv., Inc., 239 A.D.3d 933, 934, 236 N.Y.S.3d 718 [alteration omitted], quoting Rokina Opt. Co. v. Camera King, 63 N.Y.2d 728, 730, 480 N.Y.S.2d 197, 469 N.E.2d 518;  see Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 71, 760 N.Y.S.2d 727, 790 N.E.2d 1156).  “The sole issue to be determined at the inquest is the extent of the damages sustained by the plaintiff, and the court may not consider the question of whether the defendant caused the damages sustained by the plaintiff” (Chalom v. Elat Car & Limousine Serv., Inc., 239 A.D.3d at 934, 236 N.Y.S.3d 718;  see LD Acquisition Co. 9, LLC v. TSH Trade Group, LLC, 211 A.D.3d 928, 930, 181 N.Y.S.3d 284).  At an inquest, the plaintiff bears the burden of setting forth a prima facie case as to damages (see Levine v. Pee Wee & Tyson, Ltd., 244 A.D.3d 825, 826, 248 N.Y.S.3d 231;  Bobbo Prop. Mgt., Inc. v. Faulkner, 235 A.D.3d 615, 227 N.Y.S.3d 369).

Here, the Supreme Court erred in considering the question of whether the plaintiff signed a satisfaction of mortgage under duress.  The defendant's answer was stricken and as a result, the defendant admitted all traversable allegations in the amended complaint, including the allegation that the satisfaction of mortgage was signed under an implied threat of physical harm.  The sole issue to be determined at the inquest was the extent of damages sustained by the plaintiff (see CPLR 3215[a];  Rokina Opt. Co. v. Camera King, 63 N.Y.2d at 730, 480 N.Y.S.2d 197, 469 N.E.2d 518;  LD Acquisition Co. 9, LLC v. TSH Trade Group, LLC, 211 A.D.3d at 930, 181 N.Y.S.3d 284).

Accordingly, we reverse the order and remit the matter to the Supreme Court, Richmond County, for a determination on the issue of damages.

The parties' remaining contentions are without merit.

GENOVESI, J.P., FORD, LANDICINO and QUIRK, JJ., concur.