From Casetext: Smarter Legal Research

Phoenix Ins. Co. v. Cohen

Appellate Division of the Supreme Court of New York, Second Department
Nov 28, 2006
34 A.D.3d 775 (N.Y. App. Div. 2006)

Opinion

No. 2005-11966.

November 28, 2006.

In an action to recover damages for negligence, the defendant Eye to Eye Vision Centers appeals from a judgment of the Supreme Court, Suffolk County (Hudson, J.), entered December 8, 2005, which, after a nonjury trial on the issue of liability, is in favor of the plaintiff and against it in the principal sum of $168,225.25.

Before: Adams, J.P., Ritter, Lunn and Covello, JJ., concur.


Ordered that the judgment is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for a trial on the issue of damages. The findings of fact on the issue of liability are affirmed.

Reviewing the record as a whole, the Supreme Court did not err in finding the appellant negligent in the happening of the accident ( see Weitzmann v Barber Asphalt Co., 190 NY 452; Matter of Capizola v Vantage Intl., 2 AD3d 843; Distribuidora Nacional De Disco of N.Y. v Rappaport, 92 AD2d 559). However, on the record presented, there is no basis for the damage award. The sole issue at the nonjury trial was liability, and the record does not otherwise disclose a basis for the award. All of the arguments offered by the respondent in support of the same concern matters dehors the record. Thus, the judgment must be reversed and the matter remitted for a trial on the issue of damages.


Summaries of

Phoenix Ins. Co. v. Cohen

Appellate Division of the Supreme Court of New York, Second Department
Nov 28, 2006
34 A.D.3d 775 (N.Y. App. Div. 2006)
Case details for

Phoenix Ins. Co. v. Cohen

Case Details

Full title:PHOENIX INSURANCE COMPANY, Respondent, v. ALLEN COHEN, Defendant, and EYE…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Nov 28, 2006

Citations

34 A.D.3d 775 (N.Y. App. Div. 2006)
2006 N.Y. Slip Op. 8958
826 N.Y.S.2d 344

Citing Cases

Steinmetz v. Schultz

It is clear law that, if a creditor accepts from his debtor as conditional payment of the debt the written…

Kane v. Eastman

See, also, 3 Ruling Case Law, Bills and Notes, § 446, p. 1224. The following decisions support the same rule:…