Fundamental error

Mafes v City of New York, 2014 NY Slip Op 06031 [1st Dept. 2014]

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]).

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