| Mafes v City of New York |
| 2014 NY Slip Op 06031 |
| Decided on September 4, 2014 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on September 4, 2014
Gonzalez, P.J., Mazzarelli, Sweeny, Manzanet-Daniels, Clark, JJ.
14093/05 -12401A 12401 12400
v
City of New York, et al., Defendants, Lincoln Tugwell, Defendant-Appellant.
Rothstein Law PLLC, New York (Eric E. Rothstein of counsel), for appellant.
Miranda Sambursky Slone Sklarin Verveniotis, LLP, Elmsford (Robert D. Wilkins of counsel), for respondent.
Judgment, Supreme Court, Bronx County (Lucindo Suarez, J.), entered July 26, 2013, to the extent appealed from, awarding plaintiff damages as against defendant Lincoln Tugwell, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered July 26, 2013, after an inquest, unanimously dismissed, without costs, as subsumed in the appeal from the judgment. Order, same court (Barry Salman, J.), entered October 24, 2013, which denied defendant's motion for reargument and sanctions against plaintiff's counsel, or, in the alternative, an extension of time to demonstrate a meritorious defense to the action, unanimously affirmed, insofar as it denied sanctions or an extension of time, and appeal therefrom otherwise dismissed, without costs, as taken from a nonappealable paper.
Defendant requests that we exercise our "interest of justice power to correct a fundamental error" that his counsel failed to raise at the inquest, i.e., that damages have been awarded against him for conduct not attributed to him in the complaint (citing Peguero v 601 Realty Corp., 58 AD3d 556, 563 [1st Dept 2009] [an error "so fundamental as to preclude consideration of the central issue upon which the claim of liability is founded" may be reviewed in the interests of justice, even absent objection]). However, since the inquest was held upon his default, defendant's liability was not at issue therein; he is deemed to have admitted it (see Wilson v Galicia Contr. & Restoration Corp., 10 NY3d 827, 830 [2008]). In the circumstances, our going outside applicable law to entertain arguments not preserved for appeal would not further the objective of "ensur[ing] that plaintiffs do not secure money judgments based on fraudulent claims" (id.).
No appeal lies from the denial of a motion for leave to reargue (Belok v New York City Dept. of Hous. Preserv. & Dev., 89 AD3d 579 [1st Dept 2011]).
We have considered defendant's remaining contentions and find them without merit.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: SEPTEMBER 4, 2014
CLERK