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THE DEFAULTING DEFENDANT WHOSE ANSWER HAD BEEN STRUCK WAS NOT ENTITLED TO FURTHER DISCOVERY PRIOR TO THE INQUEST ON DAMAGES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defaulting defendant whose answer had been struck was not entitled to further discovery for the inquest on damages:

The Supreme Court erred in granting the defendant’s motion to vacate the note of issue and certificate of readiness and to compel the plaintiff to provide additional discovery. “While a defaulting defendant is entitled to present testimony and evidence and cross-examine the plaintiff’s witnesses at the inquest on damages, such a defendant is not entitled to any further discovery since its answer was stricken” … . Here, since the court struck the defendant’s answer … the defendant “is not entitled to any further discovery” … . Brasil-Puello v Weisman, 2022 NY Slip Op 04893, Second Dept 8-10-22

Practice Point: A defaulting defendant whose answer has been struck is not entitled to discovery prior to the inquest on damages.

 

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