| Kolonkowski v Daily News, L.P. |
| 2013 NY Slip Op 08230 [112 AD3d 677] |
| December 11, 2013 |
| Appellate Division, Second Department |
| Christopher Kolonkowski, Appellant, v DailyNews, L.P., Respondent. |
—[*1] Mulholland, Minion, Duffy, Davey, McNiff & Beyrer, Williston Park, N.Y. (Sean M.Dixon of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Nassau County (K. Murphy, J.), entered August 7, 2012,which denied his cross motion for a protective order pursuant to CPLR 3103 (a)precluding the defendant from compelling him to submit to an independent medicalexamination, and directed him to submit to an independent medical examination.
Ordered that the order is reversed, on the law, with costs, and the plaintiff's crossmotion for a protective order pursuant to CPLR 3103 (a) precluding the defendant fromcompelling him to submit to an independent medical examination is granted.
The plaintiff commenced this action to recover damages for personal injuries heallegedly sustained when the defendant's unsecured newspaper vending machine fell andstruck him. In a prior decision and order dated April 3, 2012, this Court reversed an orderof the Supreme Court, Nassau County, entered May 31, 2011, granted the plaintiff'smotion for leave to enter judgment on the issue of liability against the defendant upon itsfailure to appear or answer the complaint, and denied the defendant's cross motion tocompel the plaintiff to accept its late answer (see Kolonkowski v Daily News, L.P., 94 AD3d 704[2012]). Subsequently, in an order entered August 7, 2012, the Supreme Court denied theplaintiff's cross motion for a protective order pursuant to CPLR 3103 (a) precluding thedefendant from compelling him to submit to an independent medical examination, anddirected him to submit to the examination.
Although " 'a defaulting defendant is entitled to present testimony and evidence andcross-examine the plaintiff's witnesses at the inquest on damages,' a defendant forfeits theright to discovery by defaulting in answering the complaint" (Minicozzi vGerbino, 301 AD2d 580, 581 [2003], quoting Santiago v Siega, 255 AD2d307, 307 [1998]; see Amato vFast Repair, Inc., 15 AD3d 429, 430 [2005]; Hall v Penas, 5 AD3d 549, 550 [2004]). Contrary to theSupreme Court's determination, the defendant was not entitled to any further discovery,since its right to discovery was forfeited by its default in answering the complaint(see Montgomery v City of New York, 307 AD2d 957 [2003]; Minicozzi vGerbino, [*2]301 AD2d 580, 581 [2003];Santiago v Siega, 255 AD2d at 307-308). Accordingly, the Supreme Court erredin denying the plaintiff's cross motion for a protective order and directing him to submitto an independent medical examination. Dillon, J.P., Angiolillo, Roman and Sgroi, JJ.,concur.