Montgomery v. City of New York

307 A.D.2d 957, 763 N.Y.S.2d 477

Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Hutcherson, J.), dated December 12, 2002, which granted the defendants’ motion to compel the plaintiff Francine Montgomery to appear for an examination before trial and for an independent medical examination pursuant to CPLR 3124, and denied their cross motion to impose a sanction pursuant to 22 NYCRR 130-1.3.

Ordered that the order is modified, by deleting the provision thereof granting the motion and substituting therefor a provision denying the motion; as so modified, the order is affirmed, with costs to the plaintiffs.

While a defendant who defaults in appearing or answering is entitled to present testimony and evidence and to cross: examine a plaintiff’s witnesses at the inquest on damages, such a defendant forfeits his or her right to conduct discovery in preparation for the inquest (see Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568, 573 [1978]; Minicozzi v Gerbino, 301 AD2d 580 [2003]). Therefore, the Supreme Court improvidently exercised its discretion in granting the defendants’ motion.

The Supreme Court properly exercised its discretion in denying the plaintiffs’ cross motion to impose a sanction pursuant to 22 NYCRR 130-1.3 (see Wagner v Goldberg, 293 AD2d 527 [2002]). Santucci, J.P., Smith, Luciano, Schmidt and Mastro, JJ., concur.