Opinion
2003-00049
Submitted June 11, 2003.
August 11, 2003.
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.
Manoussos Associates, P.C., Garden City, N.Y. (Lorenzo V. Delillo, Albert J. Fiorella, and Lamont K. Rodgers of counsel), for appellants.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and Marta Ross of counsel), for respondents.
Before: FRED T. SANTUCCI, J.P., NANCY E. SMITH, DANIEL F. LUCIANO, ROBERT W. SCHMIDT, WILLIAM F. MASTRO, JJ.
DECISION ORDER
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 Securities v. Underwriters Bank Trust Co., 44 N.Y.2d 568, 573; Minicozzi v. Gerbino, 301 A.D.2d 580). 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 A.D.2d 527).
SANTUCCI, J.P., SMITH, LUCIANO, SCHMIDT and MASTRO, JJ., concur.