Ayala v. Boss

• Decision Date: 15 June 1983
• Citation: 120 Misc.2d 430,466 N.Y.S.2d 128
• Parties: Monserrate AYALA, et al., Plaintiffs, v. Emil BOSS, Jr., Defendant.
• Court: New York Supreme Court

Page 128

466 N.Y.S.2d 128

120 Misc.2d 430

Monserrate AYALA, et al., Plaintiffs, v. Emil BOSS, Jr., Defendant.

Supreme Court, Special Term Bronx County, Part I.

June 15, 1983.

Stillman & Spiegel, P.C., New York City (Marvin Stillman, New York City), for plaintiffs.

Wilson, Bave, Conboy & Bave, P.C. (Robert H. Kouffman, Yonkers), for defendant.

WALLACE R. COTTON, Justice:

A defendant in a personal injury action who is confronted with a court order directing an inquest against him to assess the plaintiff's damages, may, upon timely application, conduct a physical examination of the plaintiff, demand medical authorizations, and a Bill of Particulars limited to the issue of damages.

The defendant, duly served by the plaintiffs with a summons and complaint in the instant personal injury action, neglected to interpose a timely answer and, accordingly, the plaintiffs elected to hold him in default. The plaintiffs thereafter moved for an order of inquest and assessment of damages against the defendant. Plaintiffs' motion was granted. The order directed the plaintiffs to file a note of inquest. A few weeks later, the defendant moved to vacate his default. However, the defendant's application was denied, and on April 25, 1983, the plaintiffs filed their Note of Issue.

By the instant motion, the defendant moved within the time period prescribed by 22 NYCRR § 660.4(d)3 to strike the plaintiffs' Note of Issue because he did not have the opportunity to conduct a physical examination of the injured plaintiffs, demand medical authorizations and a Bill of Particulars. The plaintiffs resist the defendant's application upon the sole ground that the action has been marked for inquest.

The plaintiffs misperceive the legal consequences which flow from the entry of a default judgment against a defendant in relation to the latter's rights at inquest. In the seminal case of McClelland v. Climax Hosiery Mills, 252 N.Y. 347, 169 N.E. 605, the Court of Appeals held that "(t)he defendant, by failing to answer, admits all traversable allegations contained in the complaint. (Foster v. Smith, 10 Wend. 377; Paine & Duer Practice, vol. 1, p. 635.) An allegation of damage is not, however, a traversable allegation. (Emery v. Baltz, 94 N.Y. 408, at 412.) It is not admitted by a defendant's failure to answer. (Hartness v. Boyd, 5 Wend. 563; Howell v. Bennett, 74 Hun, 555, at 558, 26 N.Y.S. 627; Thompson v. Halbert, 109 N.Y. 329, 16 N.E. 675; Lewis v. City Realty Co., 158 App.Div. 733, 143 N.Y.S. 1026; Sutton v. Duntley, 205 App.Div. 660, 199 N.Y.S. 588.)

Upon an assessment of damages, 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, not for the purpose of defeating the plaintiff's cause of action in toto, because he has admitted the cause of action by failing to answer and plaintiff is entitled, in any event, to nominal damages. The testimony is competent, however, for the purpose of assisting the court in fixing the real damages suffered by the plaintiff, (Kerker & Willets v. Carter, 1 Hill, 101; Hartness v. Boyd, supra; Wandell v. Edwards, 25 Hun, 498; Graham's Practice, 642)",McClelland v. Climax Hosiery Mills, 252 N.Y. 347, 351, 169 N.E. 605.

Although the McClelland case, supra, was decided more than fifty years ago, the principle enunciated therein still prevails under our modern rules of civil procedure (see Winson Gems v. D. Gumbiner, 85 A.D.2d 69, 448 N.Y.S.2d 471 (1982); Siegel, New York Practice, § 293, at p. 348; Ann., Defaulting Defendant's Rights to Notice and Hearing as to Determination of Amount of Damages, 15 A.L.R.3d 586, § 5).

Thus, by failing to timely answer, the defendant in the case at bar does not admit the plaintiffs' legal conclusion as to damages. During the hearing to assess damages, he is not, therefore, foreclosed from offering evidence which focuses upon the extent of the injured plaintiffs' physical condition (Siegel, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CPLR C3215:6, p. 866). However, the defendant's absolute legal right to submit proof in mitigation of the damages allegedly sustained by the plaintiffs would be substantially impaired, if not rendered meaningless, in a personal injury action if the defendant could not designate a physician to examine the plaintiff in order to call upon him to testify at the inquest as to his findings and expert opinion based thereon.

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