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Supreme Court, Appellate Division, First Department, New York.

Kwabena YEBOAH, Plaintiff-Appellant, v. GAINES SERVICE LEASING, et al., Defendants-Respondents.

Decided: May 19, 1998

Before ROSENBERGER, J.P., and ELLERIN, NARDELLI and RUBIN, JJ. Barry Siskin, for plaintiff-appellant. William A. Magliano, for defendants-respondents.

Order, Supreme Court, Bronx County (Barry Salman, J.), entered August 4, 1997, which, in this personal injury action, granted defendants' motion to compel a physical examination and oral deposition of plaintiff for the purpose of their appearance at inquest, unanimously reversed, on the law, without costs, and the motion denied.

 Plaintiff obtained an order granting judgment upon defendants' default in appearance.   Prior to entry of the order, defendants served an answer, which plaintiff rejected.   Defendants did not thereafter move to vacate their default.   However, some seven months after plaintiff filed a note of issue upon them, defendants submitted this motion for leave to conduct a physical examination and oral deposition of plaintiff, limited to the issue of damages and medical treatment.   Supreme Court granted the motion for discovery, postponing the inquest for five weeks.

 It is settled that “a defendant who has served a notice of appearance is entitled to notice of the assessment, to appear and cross-examine the plaintiff's witnesses, and to offer testimony upon the question of damages” (McClelland v. Climax Hosiery Mills, 252 N.Y. 347, 351, 169 N.E. 605).   Similarly, CPLR 3215 has been construed to afford to a defendant with “five days' notice of the application (subd. [f] ), as well as a full opportunity to cross-examine witnesses, give testimony and offer proof in mitigation of damages” (Reynolds Sec. v. Underwriters Bank and Trust Co., 44 N.Y.2d 568, 572, 406 N.Y.S.2d 743, 378 N.E.2d 106).   However, if the brief notice period of the statute leaves any doubt (see, Ayala v. Boss, 120 Misc.2d 430, 466 N.Y.S.2d 128), the Reynolds decision makes it clear that the pursuit of discovery on the question of damages is exclusively the prerogative of the plaintiff because, “as a result of his default, the defendant has now forfeited his right to take the plaintiff's deposition” (supra, at 573, 406 N.Y.S.2d 743, 378 N.E.2d 106).   Therefore, it is error to permit a defaulting defendant to conduct discovery of the plaintiff in preparation for an appearance at inquest.

The Decision and Order of this Court entered herein on February 10, 1998 is hereby recalled and vacated.   See M-1779, 250 A.D.2d 453, 675 N.Y.S.2d 278, decided simultaneously herewith.