Calvert v. City of New York

—In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Lonschein, J.), dated June 16, 1997, which, upon a trial ruling granting the motion by the defendant City of New York to dismiss the complaint after the plaintiff’s offer of proof, dismissed the complaint. Ordered that the judgment is modified by deleting the provision thereof which dismissed the complaint as against the defaulting defendants, William H. Foster and Clara N. Foster; as so modified, the judgment is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for an inquest as to damages in accordance herewith. Contrary to the plaintiff’s contention, the Supreme Court did 615 not err in dismissing the complaint insofar as asserted against the defendant City of New York after the plaintiffs offer of proof since the plaintiff failed to establish a prima facie case against the City (see generally, Fuller v New York City Bd. of Educ., 206 AD2d 452). However, with regard to the defaulting defendants, William H. Foster and Clara N. Foster, the court should have given the plaintiff the opportunity to offer proof at a damages inquest. Accordingly, the matter is remitted to the Supreme Court to conduct a damages inquest against the defaulting defendants. Mangano, P. J., Miller, Pizzuto and Krausman, JJ., concur.