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Delman v. Misk

Appellate Division of the Supreme Court of New York, Second Department
Jun 13, 1994
205 A.D.2d 577 (N.Y. App. Div. 1994)

Opinion

June 13, 1994

Appeal from the Supreme Court, Queens County (Smith, J.).


Ordered that the resettled order is affirmed insofar as appealed from, without costs or disbursements.

The summons and complaint in this action were served on August 6, 1990. On September 28, 1990, default judgments were entered against the defendant, and on December 19, 1990, the defendant moved to vacate the default judgments. The court (Price, J.) held a traverse hearing on March 8, 1991, subsequent to which it issued an order, inter alia, conditionally vacating the defendant's default (see, Delman v. Misk, 205 A.D.2d 576 [decided herewith]).

The defendant argues that the comments made by Judge Price at the close of the traverse hearing were law of the case on the issue of the viability of their "demand" defense and accordingly raise a triable issue of fact with regard to the issue of liability. We disagree. The comments, made within the context of determining the motion to vacate the default judgments, were "made upon a different record and in application of a different standard of review" (Congress Talcott Corp. v. Pacemakers Trading Corp., 177 A.D.2d 459, 460).

Because there exist issues of fact as to the exact amount which the defendant owed the plaintiffs, it was proper for the court to set the question of damages down for a hearing.

We have reviewed the defendant's remaining contentions and conclude that they are without merit. Sullivan, J.P., Pizzuto, Joy and Goldstein, JJ., concur.


Summaries of

Delman v. Misk

Appellate Division of the Supreme Court of New York, Second Department
Jun 13, 1994
205 A.D.2d 577 (N.Y. App. Div. 1994)
Case details for

Delman v. Misk

Case Details

Full title:LEONARD DELMAN et al., Respondents-Appellants, v. NASRALLAH MISK…

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

Date published: Jun 13, 1994

Citations

205 A.D.2d 577 (N.Y. App. Div. 1994)
614 N.Y.S.2d 285

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