Opinion
December 3, 1990
Appeal from the Supreme Court, Nassau County (Kutner, J.).
Ordered that the order is modified, on the law, by adding thereto a provision granting the motion to the extent of reducing the amount awarded from $36,392 to $17,000 and denying the motion in all other respects; as so modified, the order is affirmed, with costs to the plaintiff, and the matter is remitted to the Supreme Court, Nassau County, for the entry of an amended judgment in accordance herewith.
A decision to vacate a default pursuant to CPLR 5015 (a) is generally left to the sound discretion of the Supreme Court (see, Ehmer v. Modernismo Publ., 120 A.D.2d 483, 484). The record herein indicates that the Supreme Court's determination to deny the defendant's application to vacate his default in appearing at the trial was not an improvident exercise of discretion (see, Formichella v. Formichella, 134 A.D.2d 481). The hearing held on the defendant's motion in this case establishes that the default did not arise out of mere inadvertence or neglect but, rather, was the intended result of the conduct deliberately engaged in by the defense counsel (see, Clarke v. New Rochelle Hosp. Med. Center, 149 A.D.2d 559; Perellie v. Crimson's Rest., 108 A.D.2d 903). Moreover, under the circumstances, the intentional conduct of the defendant's attorney must be imputed to the defendant (see, Chery v. Anthony, 156 A.D.2d 414; Greenwald v. Zyvith, 23 A.D.2d 201).
However, it is established law that "[a] default judgment cannot exceed in amount or differ in the kind of relief from that demanded in the complaint" (Sanford v. Powers, 93 A.D.2d 985; see also, Frascatore v. Mione, 97 A.D.2d 809, 810; CPLR 3215 [b]). It is equally well established that "at an inquest, the court may not permit amendments of pleadings which would broaden the scope of the inquest and increase the amount of damages provable by the plaintiff" (Recon Car Corp. v. Chrysler Corp., 130 A.D.2d 725, 732; see, Gluck v. Allen Mfg. Co., 53 A.D.2d 584; Frank P. McNally, Inc. v. Ontario Frgt. Lines Corp., 29 A.D.2d 678) absent notice to the defendant. Thus, the court erred in allowing the plaintiff, without notice to the defendant, to amend its ad damnum clause at the inquest to increase the amount of damages sought from $17,000 to $36,392. Accordingly, the judgment must be modified to limit the award to the amount originally demanded in the complaint. Balletta, J.P., Miller, O'Brien and Ritter, JJ., concur.