Wolf v. Herbil Holding Co.

In an action to recover damages for the failure of defendant Herbil Holding Co. to close title to real property purchased by it at a foreclosure sale, plaintiff appeals from an order of the Supreme Court, Nassau County, dated December 12,1979, which denied his motion to strike the answer and counterclaim of defendant Herbil Holding Co. and to set the matter down for an assessment of damages. Order reversed, on the law, with $50 costs and disbursements, motion granted and case remitted to Special Term for an assessment of damages. Under the circumstances of this case, it was erroneous for Special Term to have determined that there were triable issues of fact concerning the liability of defendant Herbil Holding Co. Such liability was established by a prior order of Special Term from which defendant Herbil Holding Co. never appealed. Accordingly, the only question which remained was a determination as to the quantum of damages. Damiani, J. P., Titone, Lazer and Cohalan, JJ., concur.