Suleiman v Miamor Transp. Corp.

[*1] Suleiman v Miamor Transp. Corp. 2006 NY Slip Op 52068(U) [13 Misc 3d 1230(A)] Decided on October 30, 2006 Supreme Court, Bronx County Hunter, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 30, 2006
Supreme Court, Bronx County

Mohammed Suleiman and Tara Perry, Plaintiffs,

against

Miamor Transportation Corp. and Rafael A. Rodriguez, Defendants.



22829/03



Plaintiffs' Counsel: Barry Siskin, Esq.

Defendants' Counsel: Michael Bartley, Esq.

Alexander W. Hunter, J.

Plaintiff's post-trial motion to vacate this court's dismissal of the action on August 10, 2005 is denied.

Plaintiff's motion is untimely. Under CPLR Rule 4405, a post-trial motion made pursuant to CPLR Rule 4404 must be made within fifteen (15) days of the trial court's decision. This court dismissed this action on August 10, 2005. The movants' Notice of Motion is dated August 10, 2006, exactly one year later. No explanation for the delay is offered.

CPLR Rule 4405 reads, in relevant part, as follows:

Time and judge before whom post-trial motion made

A motion under this article shall be made before the judge

who presided at the trial within fifteen days after decision,

verdict or discharge of the jury.

It is well settled that "although a defaulting defendant admits all traversable allegations in the complaint, including the basic issue of liability, an allegation of damages is not a traversable allegation and, therefore, a defaulting defendant does not admit the plaintiff's conclusion of damages ." Amusement Bus. Underwriters v. American Intl. Group, 66 NY2d 878, 880, 498 NYS2d 760 (1985) quoting 1188 Rokina Opt. Co. v. Camera King, 63 NY2d 728, 731, 480 NYS2d 197 (1984).

On the merits, this action was to recover damages for personal injuries sustained in a motor vehicle accident. As such, plaintiffs were required to prove that they suffered a serious injury, even as against the defaulting defendants. Since their default established only that they were at fault for the accident and not that plaintiffs suffered a serious injury, the defendants were entitled to contest the issues serious injury and damages and must be accorded a full and fair opportunity to cross-examine witnesses, give testimony, and offer proof in mitigation of damages. 1188 Rokina Opt. Co. v. Camera King, supra ; see, Toure v. Harrison, 6 AD3d 270, 272, 775 NYS2d 282, 284 (1st Dept. 2004); Ortiz v. Biswas, 4 AD3d 151, 771 NYS2d 643 (1st [*2]Dept. 2004); Pampafikos v. Wander, 4, AD3d 152, 153, 771 NYS2d 642, 643 (1st Dept.2004).

The inquest herein was contested by the defendants. Therefore, this trial court refused to allow plaintiffs to submit affidavits from their doctors as proof of damages in lieu of their testimony. Since plaintiff offered no competent medical proof whatsoever, this court dismissed this action for failure to make out a prima facie case of a serious injury. See, Licari v. Elliot, 57, NY2d 230, 234 (1982) (Court of Appeals upheld the Appellate Division's reversal of denial of motion to set aside jury verdict because plaintiff "[f]ailed to establish that his injury met any of the threshold requirements of a serious injury....")

In Conteh v. Hand, 234 AD2d 96, 650 N.Y.S. 723 (1st Dept. 1996) the court ordered a new inquest because a defendant was denied the opportunity to call a witness. The court explained:

Unless the damages sought are for a sum certain, which can be determined by computation, the defaulting defendant must be given " a full opportunity to cross-examine witnesses, give testimony and offer proof in mitigation of damages' " (Rokina Opt. Co. v. Camera King, 63 NY2d 728, 730, quoting Reynolds Sec. v. Underwriters Bank & Trust Co., 44 NY2d 568, 572). The court's ruling deprived defendants of such full opportunity.

Affidavits by their nature cannot be the subject of a cross-examination.

The plaintiffs attempted to submit affidavits from plaintiffs' treating doctor, Dr. Das and from Dr. Ravindra Ginde, a radiologist who interpreted plaintiffs MRI films, as proof of their damages in lieu of live testimony in court. See, Ruzal v. Mohammed, 283 AD2d 318, 724 NYS2d 824 (1st Dept. 2001) which concluded that under Uniform Rule §202.46(a), the motion court erred in holding an inquest on a submissions only basis since the defendants therein did not default in appearing at an inquest on damages:

Where a defendant has defaulted in an action and the subsequent assessment of damages requires extrinsic proof, such defendant must have "a full opportunity to cross-examine witnesses, give testimony and offer proof in mitigation of damages" (Rokina Opt. Co. v. Camera King 63 NY2d 728, 730 [citation omitted]; Conteh v. Hand, 234 AD2d 96). Thus, here, the motion court erred in holding an inquest on submissions only without defendant having first defaulted on a formal inquest proceeding (22 NYCRR 202.46 [a]), and defendants are entitled to the requested relief (see, Byron O. Taxi, Inc. v. Swartz, 278 AD2d 108).

(283 AD2d at 319)



Plaintiffs' reliance on Glasser v. American Homes of Clifton Park Div. Of American Homes, Inc., 144 AD2d 890, 535 NYS2d 208 (3d Dept. 1988) to support their contention that Uniform Rules §202.46 authorizes use of affidavits in lieu of live testimony in a contested damages inquest is misplaced. Since the defendant in Glasser, unlike the instant case and Ruzal, defaulted in appearing at the damages inquest, the plaintiff was entitled under Uniform Rule §202.46(a) to submit affidavits precisely because the defendant did not appear at the inquest. [*3]See, Eden Park Health Services, Inc. v. Estes, 2 AD3d 1186, 769 NYS2d 647, 649 (3d Dept. 2003) (explaining that in circumstances where a defaulting party fails to appear at an inquest, 22 NYCRR 202.46(a) permits the party entitled to judgment to submit affidavits as proof of damages.). In addition, Glasser was not a tort action but a claim for breach of warranty in connection with the purchase of real property.

Since the precedent of case law establishes that defendants attending inquests are to be permitted to cross-examine witnesses, the only cogent reading of the Uniform Rules of Court §202.46 [FN1] is that parts "a" and "b" must be read in the conjunctive and not the disjunctive,that is, they are meant to be read together. Thus, if a defendant who has failed to answer also fails to appear at an inquest, then the plaintiff may proceed to make his or her case with writings. As Ruzal said in pertinent part, which needs to again be repeated, "Thus, here, the motion court erred in holding an inquest on submissions only without defendant having first defaulted on a formal inquest proceeding (22 NYCRR 202.46[a])..."

Citing Professor Siegel's commentaries, this court explained why the affidavits of Drs. Das and Ginde were not acceptable proof of damages in a contested damages inquest in a tort action, as follows:

...plaintiff cannot use mere affidavits at inquest in a tort case. Despite default on liability, the defendant is entitled to cross-examine on damages...When a defendant defaults and appears to concede liability, there must still be an inquest on prior damages, and the defendant, despite the default, can appear at the inquest to contest the damages and is entitled to cross-examine the damages witnesses. Hence, the mere affidavit of plaintiff's medical witnesses may not be taken as proof at the inquest if the defendant insists on the right to cross-examine....(Siskin Aff., Exhibit A8:, at 7).

Additionally, the propriety of the trial court's determination is also supported by the Decision/Order dated November 24, 2004 (Siskin Aff., Exhibit "A4") in which Justice Saks, in denying defendants' motion to vacate their default, explained that "(a)t the inquest, defense counsel may cross-examine plaintiff's witnesses."

Furthermore, plaintiffs' reading of 22 N.Y.C.R.R. §202.46 is illogical. By their interpretation of the rule, a plaintiff would have the option of putting the prosecution in a stronger position at a contested inquest by submitting only affidavits rather than putting a live witness on the stand.

The contention by plaintiff's counsel that the trial court did not allow him to make a record on the issue of the aforesaid affidavits, is belied by a reading of the transcript of the proceedings (Siskin Aff., Exhibits A6" and A8"). Mr. Wojtaszek, trial counsel to Mr. Siskin, argued in detail why plaintiffs should be allowed to submit affidavits in lieu of live testimony from their doctors.

Movants are directed to serve a copy of this order, with Notice of Entry thereof, on the defendants within thirty (30) days of filing.

This opinion constitutes the decision and order of the Court.

Dated: October 30, 2006______________________________

Bronx, New York J.S.C. Footnotes

Footnote 1:_______________________

The text of the rule is as follows:

§202.46 Damages, inquest after default; proof

(a) In an inquest to ascertain damages upon a default, pursuant to CPLR 3215, if the defaulting party fails to appear in person or by representative, the party entitled to judgment, whether a plaintiff, third-party plaintiff, or a party who has pleaded a cross-claim or counterclaim, may be permitted to submit, in addition to the proof required by CPLR 3215(e), properly executed affidavits as proof of damages.

(b) In any action where it is necessary to take an inquest before the court, the party seeking damages may submit the proof required by oral testimony of witnesses in open court or by written statements of the witnesses, in narrative or question-and-answer form, signed and sworn to.