Kokolis v. Wallace
| Decision Date | 16 February 2022 |
| Docket Number | 2020–01553,Index No. 703957/18 |
| Citation | 202 A.D.3d 948,163 N.Y.S.3d 541 |
| Parties | Nicholas KOKOLIS, respondent, v. Anthony WALLACE, appellant. |
| Court | New York Supreme Court — Appellate Division |
202 A.D.3d 948
163 N.Y.S.3d 541
Nicholas KOKOLIS, respondent,
v.
Anthony WALLACE, appellant.
2020–01553
Index No. 703957/18
Supreme Court, Appellate Division, Second Department, New York.
Argued—November 18, 2021
February 16, 2022
Da'Tekena Barango–Tariah, Brooklyn, NY, for appellant.
Hach & Rose, LLP, New York, NY (Natasha Berg of counsel), for respondent.
MARK C. DILLON, J.P., FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, PAUL WOOTEN, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Joseph J. Esposito, J.), entered January 27, 2020. The order denied the defendant's motion to vacate (1) an amended order of the same court (Joseph Risi, J.), entered October 10, 2018, granting the plaintiff's unopposed motion for leave to enter a default judgment, and (2) a judgment of the same court (Ernest Hart, J.), entered January 15, 2019, made after an inquest on the issue of damages, which is in favor of the plaintiff and against the defendant in the principal sum of $193,413.73.
ORDERED that the order entered January 27, 2020, is modified, on the law and the facts, by deleting the provision thereof
denying that branch of the defendant's
motion which was to vacate the judgment entered January 15, 2019, and substituting therefor a provision granting that branch of the defendant's motion to the extent of reducing the award from the principal sum of $193,413.73 to the principal sum of $25,000 and otherwise denying that branch of the motion; as so modified, the order entered January 27, 2020, is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for the entry of an appropriate amended judgment.
In March 2018, the plaintiff commenced this action to recover damages for personal injuries he allegedly sustained during an alleged armed robbery committed by the defendant. The defendant failed to appear or answer the complaint. In August 2018, the plaintiff moved for leave to enter a default judgment against the defendant. The defendant failed to oppose the motion, and a default judgment was entered against him. On December 6, 2018, an inquest on the plaintiff's damages was held. Thereafter, on January 15, 2019, a judgment after inquest was entered in the plaintiff's favor in the amount of $193,413.73. In February 2019, the defendant moved to vacate the default judgment and the judgment after inquest, contending, among other things, that he was not properly served with the summons and complaint and, in the alternative, in effect, that the judgment after inquest should be reduced as excessive. In an order entered January 27, 2020, the Supreme Court denied the defendant's motion. The defendant appeals.
"Pursuant to CPLR 317, a defaulting defendant who was served with a summons other than by personal delivery may be permitted to defend the action upon a finding by the court that the defendant did not personally receive notice of the summons in time to defend and has a potentially meritorious defense" ( Dunn v. Law Offs. of Evans & Al–Shabazz, LLP, 189 A.D.3d 776, 779, 137 N.Y.S.3d 476 [internal quotation marks omitted]; see CPLR 317 ; Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co.,...
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