Malik G. Abbas, Appellant, v Roy Francis Cole, Respondent.
Supreme Court, Appellate Division, Second Department, New York
July 17, 2007
840 NYS2d 388
Santucci, J.
Kagan & Gertel, Brooklyn (Irving Gertel of counsel), for appellant.
Longo & D’Apice (Sweetbaum & Sweetbaum, Lake Success [Marshall D. Sweetbaum] of counsel), for respondent.
OPINION OF THE COURT
Santucci, J.
In this case we address the issue of whether or not a plaintiff, who has been granted a default judgment on the issuе of liability in a case seeking compensation for personal injuries arising from a motor vehicle accident, is required to demonstrate the element of “serious injury” at the inquest on damages. For the reasons that follow, we conclude that, unless the issue of serious injury has been previously determined, the plaintiff must demonstrate at the damages inquest proof of a serious injury before there can be any recovery for pain and suffering arising from a motor vehicle accident.
The case at bar has its genesis in a 1999 automobile collision between vehicles operated by the defendant, Roy Francis Cole, and the plaintiff, Malik G. Abbas. Upon the failure of the defendant to appear or answer the complaint, the plaintiff moved for leаve to enter a default judgment. The defendant then cross-moved to extend his time to submit an answer and to compel the plaintiff to accept that answer. By order dated November 30, 2001, the Supreme Court granted the plaintiffs motion and denied the defendant’s cross motion. Following an inquest on the issue of damages, the court entered judgment in favor of the plaintiff in the principal sum of $200,000. Thereafter, on appeal by the defendant, this Court reversed the judgment on the ground that certain evidence was improрerly admitted, and remitted the matter for “a new inquest at which the plaintiff will be required to establish, through admissible evidence, his damages, if any (see
Since the passage of the Comprehensive Automobile Insurance Reparations Aсt in 1973 (now
We are now called upon to clarify the somewhat muddied waters surrounding the subject of whether an injury that meets or excеeds such a threshold is a necessary element to be proven upon an inquest for damages, i.e., after the plaintiff has obtained a default judgment on the issue of liability. While it is true that “a defaulting defendant admits all traversable allegations in the complаint, including the basic issue of liability, an allegation of damage is not a traversable allegation and, therefore, a defaulting defendant does not admit the plaintiffs conclusion of damages” (Amusement Bus. Underwriters v American Intl. Group, 66 NY2d 878, 880 [1985]; see Curiale v Ardra Ins. Co., 88 NY2d 268, 279 [1996]; Rokina Opt. Co. v Camera King, 63 NY2d 728, 730 [1984]; Hussein v Ratcher, 272 AD2d 446, 447 [2000]; Kessler v Atlantic Ave. CVS, 271 AD2d 655, 656 [2000]). We also note that no distinction should be drawn in this regard between a default premised upon the striking of the answer and a default in answering, since the two instances are functional equivalents (see Jones v Corley, 32 AD3d 530 [2006]).
However, the peculiar nature of a “serious injury” claim crosses the boundaries of both the liability and the damages sрheres of a lawsuit. While the injuries sustained by a plaintiff in an action arising from a motor vehicle accident constitute the measure of his or her damages, it is the “serious” nature of
“As a general principle, the liability phase of a bifurcated trial is not the proper juncture at which to adjudicate issues regarding the severity of the injuries of the party prosecuting the case. Indeed, in a jury trial the jury is commonly instructed to decide only the question of liability and to disregard as irrelevant any reference to injuries or medical treatment (see, PJI 1:35A [Supp]). As such, during the liability portion of a bifurcated trial arising out of an automobile accident, the fact-findеr should be concerned with the apportioning of fault among the parties whose negligence it finds to have been a proximate cause of the accident (see, DiMauro v Metropolitan Suburban Bus Auth., 105 AD2d 236, 246). Issues which pertain to the extent of the injuries suffered by a plaintiff, including whether a plaintiff suffered a serious injury as such term is defined in
Insurance Law § 5102 (d) , should generally be left for the damages phase of the trial (see, e.g., Keller v Terr, 176 AD2d 921; Moreno v Roberts, 161 AD2d 1099)” (emphasis added).
Thus, a defendant’s default in cases involving injuries resulting from a motor vehicle accident may fairly be viewed as “establish[ing] only that he [or she] was at fault for the accident, not that [the] plaintiff suffered a serious injury” (Ortiz v Biswas, 4 AD3d 151, 152 [2004]; see also Pampafikos v Wander, 4 AD3d 152 [2004]).
Furthermore, by requiring the plaintiff, even upon the default of the defendant, to nevertheless submit proof that he or she has sustained a serious injury, we are comporting with the original legislative intеnt of the “No-Fault” Law, which was “to eliminate recovery in a common-law tort action for minor personal injuries” (Zecca v Riccardelli, 293 AD2d 31, 33 [2002]). Indeed, the Zecca case stands for the proposition that when a plaintiff is granted summary judgment on the issue of liability without opposition from the defendant, the grant of such рartial summary judgment does not include a determination of the plaintiffs claim that he or she has sustained a serious injury as defined by
Subsequent thereto, and in reliance upon the holding in Reid v Brown (supra), the First Department concluded that a plaintiff who has been granted a default judgment is required as a matter of law to establish at the inquest a prima facie case of serious injury (see Toure v Harrison, 6 AD3d 270 [2004]; Ortiz v Biswas, supra; Pampafikos v Wander, supra). We now add our collective voice on the issue, and hold that the grant of a default judgment on the issue of liability in cases seeking damages pursuant to
The exception to this rule would be where the defaulting defendant has, in effect, conceded the issue of serious injury after same has been pleaded аnd raised by the plaintiff (see Beresford v Waheed, 302 AD2d 342 [2003]). Contrary to the plaintiffs contention, our holding in Beresford v Waheed (supra) does not stand for the proposition that once a plaintiff is awarded a default judgment, the defendant is thereafter precluded from raising the issue of serious injury. In the Beresford case, the plaintiff moved for leave to enter a default judgment uрon the defendant’s failure to appear or answer. The plaintiffs motion papers included a verified complaint, and an affidavit of merit wherein she claimed that she had sustained “serious and permanent” injuries as a result of the accident. The defendant opposed the plaintiffs motion by cross-moving to compel service of his proposed answer. Although the defendant asserted in his proposed pleading that the plaintiff did not sustain a serious injury, in his cross motion, the defendant did not respond to the claim set forth in the plaintiffs affidavit of merit that she had sustained a serious injury. The only argument raised by the defendant in his cross motion with respect to the issue of a meritorious defense was that the plaintiffs vehicle came to an abrupt stop. The Supreme Court granted the plaintiffs motion
“Under the circumstances of this case, the defendant is precluded, pursuant to the doctrine of law of the case, from raising the issue of serious injury on this appeal since this Court affirmed the order granting the plaintiffs motion for leave to enter a default judgment. However, the Supreme Court improperly permitted the plaintiffs expert to base his opinion on a [MRI] that was not placed in evidence, and was prepared by another healthcare professional who did not testify. Therefоre, a new inquest on the issue of damages is required.
“Our decision is consistent with the result reached in Zecca v Riccardelli[, 293 AD2d 31 (2002)]). In Zecca, this Court held that where a plaintiff is granted summary judgment on the issue of liability, without opposition from the defendant, the plaintiff, nonetheless, has the burden of establishing that he or she suffered a serious injury, as defined by
Insurance Law § 5102 (d) . In contrast to Zecca, the instant case did not involve an unopposed motion for summary judgment. Here, the defendant opposed the plaintiff’s motion for leave to enter a default judgment by cross moving to compel service of his proposed answer. The defendant, in his cross mоtion, raised the issue of a meritorious defense without addressing the issue of a serious injury. In this case, the issue of whether the defendant set forth a meritorious defense, including the issue of serious injury, was fully litigated on the merits. Accordingly, there was a final adjudication on thеmerits with respect to the issue of a serious injury upon the Supreme Court’s granting of the plaintiffs motion for leave to enter a default judgment, which was subsequently affirmed by this Court” (Beresford v Waheed, supra, 302 AD2d 342, 342-343 [2003] [citations omitted and emphasis added]; see also Singh v Friedson, 10 AD3d 721, 722 [2004]).
Accordingly, the Beresford case was decided on purely procedural grounds, i.e., the defendant could not raise the issue of serious injury at the second inquest because the law of the case doctrine precluded reconsideration of the issue. “The law of the case ‘is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned’ ” (Thomas v Dietrick, 284 AD2d 325, 325 [2001], quoting Martin v City of Cohoes, 37 NY2d 162, 165 [1975]; see People v Evans, 94 NY2d 499 [2000]). Consequently, in light of the fact that the defendant in Beresford never refuted the plaintiff’s claim of serious injury, and since the court determined that plaintiff was entitled to a default judgment, the sеrious injury threshold issue was a fortiori decided on the merits. In addition, in affirming the order granting the plaintiff’s motion for a default judgment, this Court also determined that the plaintiff set forth a prima facie case, including the existence of a serious injury, which the defendant failеd to refute. Although the matter was remitted for a new inquest after the second appeal, the remittitur was not for a determination of whether the plaintiff had sustained a serious injury. Rather, the remittitur was required because the first inquest was based upon improperly admitted evidence, and thus the damages award had to be redetermined.
In contrast, in the instant case, the complaint did not allege that the plaintiff sustained a serious injury as defined in
Therefore, on the record before us, and the conclusions reached herein, we affirm the order and judgment appealed from, with costs, and hold that the trial court properly dismissed the complaint based upon the plaintiff’s failure to establish at the inquest a prima facie case of serious injury as that term is defined in
Ritter, J.P., Skelos and Dickerson, JJ., concur.
Ordered that the order and judgment is affirmed, with costs.