PIERRE v. WATSON (2019)

ORDERED that the order is reversed, without costs, plaintiff's motion, in effect, to vacate the judgment entered December 18, 2017 is granted and the matter is remitted to the Civil Court for a new inquest.

In this small claims action, plaintiff seeks to recover the principal sum of $4,000, based on damage to, and loss of, property. After defendant failed to appear, an inquest was held, following which judgment was entered dismissing the action. Plaintiff moved, in effect, to vacate the judgment. By order entered February 7, 2018, the Civil Court denied plaintiff's motion.

There is no record of the testimony given at the inquest. Since the incomplete state of the record precludes any effective appellate review of the matter, a new inquest must be held (see Murphy v. Murphy, 144 AD2d 904 [1988]; Hynard v. Apt., Inc., 2001 NY Slip Op. 40561[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2001]; see also Kaya v. Floyd, 41 Misc 3d 127[A], 2013 NY Slip Op. 51644[U] [App Term, 1st Dept 2013]; Schillingford v. Saxe, 38 Misc 3d 144[A], 2013 NY Slip Op. 50266[U] [App Term, 1st Dept 2013]; Scheinfeld v. Platt, 5 Misc 3d 132[A], 2004 NY Slip Op. 51422[U] [App Term, 1st Dept 2004]).

Accordingly, the order is reversed, plaintiff's motion, in effect, to vacate the judgment entered December 18, 2017 is granted and the matter is remitted to the Civil Court for a new inquest.

WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.