Caton v. Doug Urban Construction Co. — 109 A.D.2d 1100

Majority

p. 1100

Richard Caton et al., Respondents, v Doug Urban Construction Company, Appellant.

— Order unanimously reversed, on the law, with costs, and motion granted. Memorandum: Special Term erred in denying defendant’s motion for summary judgment. This is an action for common-law indemnity by plaintiffs, who had previously paid a default judgment

p. 1101

taken against them in an action by a person who had fallen off the roof of plaintiffs’ house. As a result of plaintiffs’ failure to respond adequately to defendant’s interrogatories, plaintiffs were precluded from establishing the reasonableness of the amount of the default judgment, a necessary element of its cause of action (see, Depo v Marine Midland Bank, 79 AD2d 846 , affd 54 NY2d 943 ; Le Frois Foods Corp. v Policy Advancing Corp., 59 AD2d 1013 ). (Appeal from order of Supreme Court, Genesee County, Mintz, J. — summary judgment.) Present — Hancock, Jr., J. P., Doerr, Boomer, Green and O’Donnell, JJ.

Cases cited

Depo v. Marine Midland Bank 54 NY2d 943 N.Y. 1981-10-22 p. 1101
Le Frois Foods Corp. v. Policy Advancing Corp. 59 AD2d 1013 N.Y. App. Div. 1977-11-04 p. 1101