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Default is not a Total Loss (NY)

September 24, 2020

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<p style="text-align: justify;">In a personal injury action, plaintiff Castaldini claims personal injury when a propane tank exploded at the home of defendant Walsh. Upon defendant’s failure to answer, plaintiff’s motion to enter default judgment was granted by the trial court, and the case was sent to inquest for a trial on damages. At the inquest trial, plaintiff testified as to his injury and submitted a written sworn statement by one of his treating physicians.  Defendant objected to the admission of the sworn statement arguing that he should be allowed to cross-examine the physician testifying as to plaintiff’s injuries. The trial court admitted the sworn statement into evidence and handed down a judgment totaling $275,000 for plaintiff’s past and future suffering.</p>
<p style="text-align: justify;">Defendant appealed to the Second Department arguing plaintiff failed to establish the accident caused his injuries and argued he had a right to cross-examine the physician. The Second Department held in <em><a href="">Castaldini v. Walsh</a></em>, that a defaulting defendant admits all allegations in the Complaint as true, but does not admit the plaintiff’s conclusory statements as to its damages. Once defendant defaulted by failing to answer the Complaint, plaintiff did not need to prove the accident caused his injuries. The purpose of an inquest court is to ascertain the <em>amount</em> of damages. (<em>Gonzalez v Wu</em>, 131 AD3d 1205, 1206; see <em>Rokina Opt. Co., Inc. v Camera King, Inc.</em>, 63 NY2d at 730; <em>Arluck v Brezinska</em>, 180 AD3d 634; <em>Jihun Kim v S &amp; M Caterers, Inc.</em>,136 AD3d 755, 756).</p>
<p style="text-align: justify;">The Second Department agreed with defendant that he had a right to cross-examine the plaintiff’s physician. Since the inquest is to ascertain damages, and defendant is present at the inquest, then plaintiff must make any treating physicians available for cross-examination. See <em>Reynolds Sec. v Underwriters Bank &amp;Trust Co.</em>, 44 NY2d 568, 572. Thus, the trial court should not have admitted the physician’s sworn statement into evidence and the case was remitted back to the trial court for a new inquest on the amount of damages.</p>
<p style="text-align: justify;">The key takeaway in this case is that even though a defendant failed in timely answering the complaint, and thus cannot argue causation, a defendant can still, and should, object as to plaintiff’s evidence for damages. Moreover, at that inquest trial for damages, a defendant has the right to cross-examine plaintiff’s treating physicians to contest damages even when in default.</p>
Thanks to Raymond Gonzalez for his contribution to this post. Please contact <a href="">Vincent F. Terrasi</a> with and questions.


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