PHOENIX INSURANCE COMPANY v. Eye To Eye Vision Centers, appellant.

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Supreme Court, Appellate Division, Second Department, New York.

PHOENIX INSURANCE COMPANY, etc., respondent, v. Allen COHEN, etc., defendant, Eye To Eye Vision Centers, appellant.

Decided: November 28, 2006

THOMAS A. ADAMS, J.P., DAVID S. RITTER, ROBERT J. LUNN, and JOSEPH COVELLO, JJ. Jacobson & Schwartz, Rockville Centre, N.Y. (Raymond E. McAlonan of counsel), for appellant. John P. Humphreys, Melville, N.Y. (Scott W. Driver of counsel), for respondent.

In an action to recover damages for negligence, the defendant Eye to Eye Vision Centers appeals from a judgment of the Supreme Court, Suffolk County (Hudson, J.), entered December 8, 2005, which, after a nonjury trial on the issue of liability, is in favor of the plaintiff and against it in the principal sum of $168,225.25.

ORDERED that the judgment is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for a trial on the issue of damages.   The findings of fact on the issue of liability are affirmed.

Reviewing the record as a whole, the Supreme Court did not err in finding the appellant negligent in the happening of the accident (see Weitzmann v. Barber Asphalt Co., 190 N.Y. 452, 83 N.E. 477;  Matter of Capizola v. Vantage Intl., 2 A.D.3d 843, 770 N.Y.S.2d 395;  Distribuidora Nacional De Disco of N.Y. v. Rappaport, 92 A.D.2d 559, 459 N.Y.S.2d 307).   However, on the record presented, there is no basis for the damage award.   The sole issue at the nonjury trial was liability, and the record does not otherwise disclose a basis for the award.   All of the arguments offered by the respondent in support of the same concern matters dehors the record.   Thus, the judgment must be reversed and the matter remitted for a trial on the issue of damages.

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