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PLAINTIFF’S TREATING PHYSICIAN SHOULD HAVE BEEN MADE AVAILABLE FOR CROSS-EXAMINATION BY THE DEFENDANT IN THIS INQUEST ON DAMAGES; ALTHOUGH DEFENDANT DEFAULTED ON LIABILITY IN THIS PERSONAL INJURY ACTION, DEFENDANT APPEARED FOR THE INQUEST (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the injured plaintiff’s (Castaldini’s) treating physician should have been made available for cross-examination by defendant at the inquest on damages. Defendant had defaulted on liability but appeared at the inquest. Supreme Court accepted an affidavit from the doctor to prove damages. The court noted that causation of the damages is not considered in an inquest:

… [W]e disagree with the Supreme Court’s determination to admit into evidence the written sworn statement of Castaldini’s treating physician without making the physician available for cross-examination. At an inquest to ascertain damages upon a defendant’s default, the plaintiff may submit proof by written sworn statements of the witnesses (see CPLR 3215[b]; 22 NYCRR 202.46[b]). However, where, as here, the defaulting defendant gives notice that he or she will appear at the inquest, the plaintiff must make the witnesses available for cross-examination (see CPLR 3215[b] …). Since Walsh did not make the physician available for cross-examination, the court should not have admitted into evidence the physician’s written sworn statement over Walsh’s objection. Further, since the court relied on the physician’s statement in making its findings of fact on damages, we remit the matter to the Supreme Court, Suffolk County, for a new inquest on the issue of damages … . Castaldini v Walsh, 2020 NY Slip Op 04822, First Dept 9-2-20

 

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