Opinion
March 16, 1987
Appeal from the Supreme Court, Nassau County (Samenga, J.).
Ordered that the judgment is reversed, on the law, and a new trial is granted as to damages only, with costs to abide the event.
After the defendants' answer was stricken upon their failure to comply with a discovery order, an inquest, restricted solely to the issue of the plaintiffs' damages, was conducted. At the inquest, however, the court refused to permit the defense counsel to participate, reasoning that by virtue of the defendants' default, they no longer possessed standing as litigants in the suit. The court, over objection, then precluded the defense counsel from cross-examining the plaintiffs' witnesses, informing him that his participation would be limited to "listening" to the proceedings. The court erred in precluding the defense counsel from participating in the inquest. As the Court of Appeals has observed, "a defendant whose answer is stricken as a result of a default admits all traversable allegations in the complaint, including the basic allegation of liability, but does not admit the plaintiff's conclusion as to damages" (Rokina Opt. Co. v. Camera King, 63 N.Y.2d 728, 730; see also, McClelland v. Climax Hosiery Mills, 252 N.Y. 347, 352; Winson Gems v. D. Gumbiner, Inc., 85 A.D.2d 69, 71, affd 57 N.Y.2d 813). Where entry of a default judgment against a defendant is made after an application to the court, as here (see, CPLR 3215 [b]), the defendant is entitled to "full opportunity to cross-examine witnesses, give testimony and offer proof in mitigation of damages" (Reynolds Sec. v. Underwriters Bank Trust Co., 44 N.Y.2d 568, 572; see also, Rokina Opt. Co. v. Camera King, supra, at 730). Accordingly, the court's determination that the defense counsel could not participate at the inquest constituted error necessitating a new trial on the issue of damages.
We have reviewed the defendants' remaining contentions and find them to be without merit. Bracken, J.P., Weinstein, Spatt and Harwood, JJ., concur.