Rudra v Friedman, ___ AD3d ___, ___ NYS2d ___, 2014 NY Slip Op 09117 [2nd Dept., 2014]
Defendants in this motor vehicle accident action served their answer late, and the plaintiff rejected it. At the same time, plaintiff moved for a default judgment and an inquest on damages. Defendants cross-moved for leave to serve a late answer.
Supreme Court granted the plaintiff’s motion to the extent of granting a default judgment on liability, and granted the defendants’ motion to the extent of allowing them to answer, to assert only those affirmative defenses addressing the issues of serious injury and damages, and to conduct disclosure regarding those issues, and to “fully litigate” them. The trouble is, the court cannot split the difference in this way, and the Appellate Division reversed.
Once Supreme Court had granted the default judgment on liability, it should have directed the inquest without allowing disclosure. Certainly, at the inquest the plaintiff will have to show prima facie proof of serious injury, and the defendants will be allowed to cross-examine the plaintiff’s witnesses and to present their own evidence. However, by defaulting they forfeited the right to disclosure.
Consider the position of the defendants, forced to defend an inquest without access to medical records, medical reports, or a physical examination. See, e.g., Minicozzi v Gerbino, 301 AD2d 580, 754 NYS2d 25 [2d Dept., 2003] and Montgomery v City of NY, 307 A.D.2d 957; 763 N.Y.S.2d 477 [2d Dept., 2003], specifically denying applications by defaulting defendants to conduct depositions and physical examinations.