Monday, April 8, 2013

Defaults and damages.

Practice point:  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.

Student note: Where an entry of a default judgment against a defendant is made after an application to the court, the defendant is entitled to a full opportunity to cross-examine witnesses, give testimony and offer proof in mitigation of damages.

Case: Rawlings v. Gillert, NY Slip Op 02063 (2d Dept. 2013).

Here is the decision.

Tomorrow's issue: Vacating a default.