Newhouse v Davis
2019 NY Slip Op 02634 [171 AD3d 480]
April 4, 2019
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 29, 2019


[*1]
 Elliot Newhouse, Appellant,
v
Lowell B. Davis, Respondent.

Gary A. Lichtman, New York, for appellant.

Lowell B. Davis, Carle Place, respondent pro se.

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered December 14, 2017, which denied plaintiff's motion to set aside a prior order, same court and Justice, rendered August 2, 2017, which dismissed the complaint, unanimously reversed, on the law, without costs, the motion granted, the complaint reinstated, and the matter remanded for an inquest to determine damages.

Defendant, having had his answer stricken, was limited to an inquest at which he could only contest the extent of plaintiff's damages (see Rokina Opt. Co. v Camera King, 63 NY2d 728, 730-731 [1984]). Thus, the inquest court improperly re-opened the issue of liability and made a determination with respect thereto (see Christian v Hashmet Mgt. Corp., 189 AD2d 597, 598 [1993]). Concur—Friedman, J.P., Gische, Kapnick, Webber, Gesmer, JJ.