| Rudra v Friedman |
| 2014 NY Slip Op 09117 [123 AD3d 1104] |
| December 31, 2014 |
| Appellate Division, Second Department |
[*1]
| Sagorica Rudra, Appellant, v Steven H.Friedman et al., Respondents. |
Linda T. Ziatz, P.C., Forest Hills, N.Y., for appellant.
McCarthy & Associates, Melville, N.Y. (John A. Canton of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from somuch of an order of the Supreme Court, Nassau County (Winslow, J.), entered April 16,2014, as, upon granting that branch of her motion pursuant to CPLR 3215 (a) which wasfor leave to enter a default judgment against the defendants on the issue of liability,denied that branch of her motion which was for an inquest on damages and granted thedefendants' cross motion to compel acceptance of their answer to the extent of permittingthem to serve a verified answer with affirmative defenses limited to the issues of seriousinjury and damages, to conduct discovery with respect to those issues, and to fully litigatethem.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,that branch of the plaintiff's motion which was for an inquest on damages is granted, thedefendants' cross motion for leave to serve a verified answer with affirmative defenseslimited to the issues of serious injury and damages is denied, and the matter is remitted tothe Supreme Court, Nassau County, for further proceedings consistent herewith.
The plaintiff commenced this action to recover damages for injuries she allegedlysustained when the defendants' vehicle struck her vehicle in the rear. The defendantsserved a late answer, which the plaintiff rejected. The plaintiff contemporaneouslymoved for leave to enter a default judgment against the defendants on the issue ofliability and for an inquest on damages. The defendants cross-moved to compel theplaintiff to accept their late answer. The Supreme Court granted that branch of theplaintiff's motion which was for leave to enter a default judgment against the defendantson the issue of liability, and denied that branch of her motion which sought an inquest ondamages. The court also granted the defendants' cross motion to compel acceptance oftheir answer to the extent of permitting them to serve a verified answer with affirmativedefenses limited to the issues of serious injury and damages, to conduct discovery withrespect to those issues, and to fully litigate them. The plaintiff appeals from thoseportions of the order that were adverse to her. We reverse the order insofar as appealedfrom, grant that branch of the plaintiff's motion which sought an inquest on damages, anddeny the defendants leave to serve a late verified answer, to assert affirmative defenses inconnection with the issues of serious injury and damages, to conduct discovery withrespect to those issues, and to fully litigate them.
[*2] Having granted that branch of the plaintiff's motionwhich was for leave to enter a default judgment against the defendants on the issue ofliability, the Supreme Court should have directed an inquest on damages. Since seriousinjury "is decidedly an issue of damages, not liability" (Van Nostrand v Froehlich, 44AD3d 54, 59 [2007]), the plaintiff will be required to present prima facie proof atthe inquest that she sustained a serious injury. However, while the defendants are"entitled to present testimony and evidence and cross-examine the plaintiff's witnesses atthe inquest on damages" (Minicozzi v Gerbino, 301 AD2d 580, 581 [2003][internal quotation marks omitted]; see Singh v Friedson, 36 AD3d 605 [2007]), they may notconduct discovery with respect to the issue of damages, since defaulting defendantsforfeit the right to discovery (seeKolonkowski v Daily News, L.P., 112 AD3d 677, 678 [2013]; Singh vFriedson, 36 AD3d at 606; Amato v Fast Repair, Inc., 15 AD3d 429, 430 [2005];Santiago v Siega, 255 AD2d 307, 307-308 [1998]).
The defendants' remaining contention is without merit. Mastro, J.P., Chambers, Sgroiand Miller, JJ., concur.