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In an Action Stemming from an Automobile Accident, Having Granted a Default Judgment, Supreme Court Should Not Have Directed Plaintiff to Accept a Late Answer and Allowed Discovery Re: Damages–A Defaulting Defendant Is Not Entitled to Discovery

The Second Department determined Supreme Court, having granted plaintiff's motion for a default judgment on liability in an automobile-accident case, should have also granted plaintiff's motion for an inquest on damages.  Supreme Court should not have ordered plaintiff to accept a late answer and allowed discovery on damages:

Having granted that branch of the plaintiff's motion which was for leave to enter a default judgment against the defendants on the issue of liability, the Supreme Court should have directed an inquest on damages. Since serious injury “is decidedly an issue of damages, not liability” …, the plaintiff will be required to present prima facie proof at the 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 at the inquest on damages” …, they may not conduct discovery with respect to the issue of damages, since defaulting defendants forfeit the right to discovery … . Rudra v Friedman, 2014 NY Slip Op 09117, 2nd Dept 12-31-14


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