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Where a claim for unliquidated damages is made, a proof hearing is required

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August 11, 2011 at 8:21 am


Law Lessons from Kocian v. Nagrod, App. Div., A-3481-09T3, June 30, 2011:

Where a claim for unliquidated damages is made, a proof hearing is required. R. 4:43-2(b). The judge has the discretion to require proof of the right to relief in addition to the quantum of damages. Douglas v. Harris, 35 N.J. 270, 276-77 (1961); Heimbach v. Mueller, 229 N.J. Super. 17, 20-21 (App. Div. 1988). He is not required to do so. Heimbach, supra, 229 N.J. Super. at 21.

The judge also has the discretion to permit the defaulting party to cross-examine the opposing party’s witnesses in appropriate circumstances and to otherwise participate on a limited basis in the proof proceedings. Compare Perry, supra, 79 N.J. Super. at 292-93 (allowing cross-examination), with Fox v. Fox, 76 N.J. Super. 600, 603 (Ch. Div. 1962) (barring cross-examination).

“Even though a defendant who has defaulted has relinquished the right to present affirmative proofs in the matter, the right to challenge a plaintiff’s showings in a proof hearing by way of cross-examination and argument should not ordinarily be precluded.” Chakravarti v. Pegasus Consulting Group, Inc., 393 N.J. Super. 203, 210-11 (App. Div. 2007); see also Jugan v. Pollen, 253 N.J. Super. 123, 129-31 (App. Div. 1992).






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