Rokina Optical Co., Inc. v. Camera King, Inc.

• Decision Date: 13 September 1984
• Citation: 63 N.Y.2d 728,480 N.Y.S.2d 197
• Parties: , 469 N.E.2d 518 ROKINA OPTICAL CO., INC., Respondent, v. CAMERA KING, INC., Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 197

480 N.Y.S.2d 197

63 N.Y.2d 728, 469 N.E.2d 518

ROKINA OPTICAL CO., INC., Respondent, v.CAMERA KING, INC., Appellant.

Court of Appeals of New York.

Sept. 13, 1984.

Benjamin H. Segal, New York City, for appellant.

Victor E. Didia, New York City, for respondent.

OPINION OF THE COURTMEMORANDUM.

The order of the Appellate Division, 98 A.D.2d 1001, 470 N.Y.S.2d 268, should be reversed, with costs, and the case remitted to Supreme Court for a new trial on the issue of damages.

This action was commenced by summons and complaint alleging that defendant had accepted merchandise delivered by plaintiff for which payment was due.The complaint demanded judgment in the amount of $90,161.30, representing the amount allegedly owed for the merchandise.In its answer, defendant contended that certain of the goods had been paid for by check, that other payments were made by applying the cost to defendant of advertising plaintiff's merchandise in trade publications as credit against the sum owed, and that a portion of the merchandise had been returned to plaintiff.Thereafter, plaintiff served a set of interrogatories, which defendant failed to answer.As a result, plaintiff moved, pursuant to CPLR 3126(subd. 3), for an order striking defendant's answer and for entry of judgment in its favor.After obtaining a three-week adjournment of the motion, defendant defaulted, resulting in an order granting the motion.Judgment was entered for the full relief demanded in the complaint.Two months later, defendant obtained an order to show cause seeking an order vacating the default judgment.

Special Term granted defendant's motion to vacate only as to the amount of the judgment, and ordered a trial "solely on the issue of the amount of damages."Special Term's order limited the evidence to be taken at the trial to that establishing the reasonable value of the merchandise delivered to defendant, thus precluding evidence relating to claimed payments and credits.Defendant objected at trial to the restricted scope of admissible evidence, asserting that, if allowed, it would show that it owed plaintiff only $3,678.90.Following the trial, the court reduced the judgment to $62,053.95 based on plaintiff's concession that it had realized $28,107.55 on resale of returned merchandise.The Appellate Division affirmed, without opinion.

The limitation imposed by Special Term's vacatur order on the scope of the evidence permitted at the damages trial does not comport with the law previously enunciated by this court concerning the determination of damages following a default (seeReynolds Securities v. Underwriters Bank & Trust Co., 44 N.Y.2d 568, 406 N.Y.S.2d 743, 378 N.E.2d 106;McClelland v. Climax Hosiery Mills, 252 N.Y. 347, 169 N.E. 605).Thus, the Appellate Division erred in affirming the amended judgment which was necessarily affected by the erroneous vacatur order (seeCPLR 5501, subd. par. 1).

Unless the damages sought in an action are for a "sum certain or for a sum which can by computation be made certain"(CPLR 3215, subd. ), judgment against...