Conteh v. Hand

—Judgment, Supreme Court, New York County (Beatrice Shainswit, J.), entered December 12, 1995, in favor of plaintiif in the amount of $142,030.09, unanimously reversed, on the law, without costs, and the matter remanded for a new inquest on damages.

Despite its earlier ruling that "[a]ny defenses regarding the measure of damages may be presented at the inquest”, the court, after the completion of plaintiff’s testimony, refused to permit defendants to call a witness at the inquest. It is well settled that by defaulting a defendant admits all traversable allegations in the complaint, including the basic allegation of liability, but does not admit the plaintiff’s conclusion as to damages. Unless the damages sought are for a sum certain, which can be determined by computation, the defaulting defendant must be given " 'a full opportunity to cross-examine witnesses, give testimony and offer proof in mitigation of damages’ ” (Rokina Opt. Co. v Camera King, 63 NY2d 728 , 730, quoting Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568 , 572). The court’s ruling deprived defendants of such full opportunity. Concur—Murphy, P. J., Milonas, Williams, Tom and Andrias, JJ.