Before the Court is an inquest into damages as result of a personal injury action which is in default. This action was begun by service of a summons and complaint filed in the Clinton County Clerks Office on November 12, 2002, and personally served on the defendant December 2, 2002. The defendant failed to appear or answer and, after application by the plaintiff, an Order of Default was entered on August 22, 2003. Notice on entry was served upon the defendant on September 5, 2003. This Court scheduled an inquest for December 4, 2003 (notice to the defendant was mailed by the Court but it was returned undelivered). The defendant had not appeared in this action nor had he submitted any documentation in opposition to the relief requested in the summons and complaint herein until December 19, 2003.

On December 4, 2003, this Court conducted an inquest into the plaintiff s claim for damages as a result of the intentional physical assault upon the person of the plaintiff on August 6, 2002.

On January 5, 2004, after the completion of the inquest, but before the Court rendered a decision on the inquest, the defendant filed a Notice of Motion dated December 19, 2003, for relief pursuant to CPLR 5015. In response to the motion, the Court has received a Reply Affidavit dated January 22, 2004, as well as a Memorandum of Law in support of same.

The relief request by the defendant is based on CPLR Rule 5015 and offers in the alternative the inquest be reopened. That rule requires a showing of excuse for the default and a meritorious defense.

EXCUSE FOR THE DEFAULT

The affidavit of the defendant in support of the motion does not offer any adequate excuse for the default. He admits receiving the summons and complaint, personally served on [*2]or about December 3, 2002, and that at least as of April 10, 2003, he was represented by Allen B. Cruikshank, Jr., Esq.. Further, that the insurance carrier of the defendant disclaimed any coverage for the claims of the plaintiff on April 14, 2003. It is also admitted that the defendant knew of his default in pleading as early as April 14, 2003 (paragraph 30, Affidavit of Dennis McLean dated December 19, 2003) It appears that nothing was done by either the defendant or his attorney with regard to the summons and complaint until some time after November 27, 2003, the date that the defendant's attorney apparently reviewed the filings at the Clinton County Clerk's Office.

This Court cannot glean from the pleadings herein what the excuse is regarding the default except that it is the position of the defendant that it was the responsibility of his insurance carrier.

MERITORIOUS DEFENSE

Assuming that there is stated an excuse for the default, it must also be accompanied by a meritorious defense. In response to that requirement, the defendant attaches an exhibit F to his affidavit which is entitled "AMENDED ANSWER WITH COUNTERCLAIM" (EXHIBIT F). Without further explanation or citation, Exhibit F sets forth in pleading form six affirmative defenses: 1) that the complaint fails to state a cause of action; 2) that the plaintiff assumed the risk of being assaulted by the defendant by being "naked on the floor with another man's wife and in that other man's residence"; 3) that the plaintiff was contributorily negligent by being where he should not have been, and thus any damages suffered by the plaintiff should be denied or reduced; 4) that the damages claimed should be denied as they were "remote from the claimed event"; 5) that the defendant did not incur any medical health care expenses, because as a Canadian citizen, all were paid by the Canadian National Health Care Plan; and 6) that by way of a counter claim for emotional distress caused by the plaintiff, i.e., sleeping with the defendant's wife, "damages for negligent infliction of emotional distress in the sum of $500,000.00" should be granted. Nothing is provided as to the merit of these defenses and appear to be facially inadequate and without legal basis.

This Court concludes that the defendant has not shown sufficiently an excuse for the default nor the meritorious nature of the defenses alleged in Exhibit F.

Aside from the request to open the default judgement, there is an alternative request for a reopening of the inquest so as to allow the defendant to participate in assessing damages. It is evident that both parties agree that no personal service was had on the defendant beyond the service of the summons and complaint. Other than ordinary mail to the last known address of the defendant, no other action was taken that was likely to give notice to the defendant that further proceedings were taking place. It is evident that the defendant did not receive actual notice of the motion for the default judgement or of the inquest to assess damages. Since the defendant did not appear or answer, there is no requirement of personal service for the other proceedings that followed (CPLR Section 3215, 1 and 2). There are occasions when a defendant might very well not respond to a summons and complaint, concede liability and participate in the [*3]damages assessment. In fact, the plaintiff, in his "Inquest Brief" provided as part of his application to conduct an inquest to assess damages, acknowledged the right of the defendant to participate in such inquest even though he had defaulted (page 2 and 3, Inquest Brief dated December 3, 2003).

It is evident that the defendant could not have exercised that right if he had no notice of the proceeding or the request to have one. Clearly, better practice would have been to personally serve the defendant at each stage of the proceedings. Much of the doubt would have been eliminated. As pointed out by counsel, New York Courts readily grant motions to vacate defaults. In this instance, however, this Court is not inclined to vacate the default judgement on the grounds as above stated but is willing to allow the defendant to participate in the inquest proceeding, much like the bifurcation of a trial when liability is conceded and the only issue remaining is damages. CPLR 3215 (g) 2 provides for the defendant, who has not appeared in the action, to serve a notice upon the plaintiff so as to allow the defendant to be given notice of any reference or assessment by a jury that may be scheduled by the court. Without actual notice of the default judgement, the defendant would not likely have had the opportunity to serve the notice as contemplated by the statute. Since

this Court has not rendered a decision with regard to the inquest, it would be of little prejudice to the plaintiff to allow the defendant to participate in the inquest.

This Court will reserve decision on the inquest for a period of sixty (60) days from the date of this order. During the intervening period, the defendant shall have the opportunity to review all the submissions made to the Court related to the inquest conducted on December 4, 2003, and, if he desires, order the transcript of the inquest at his cost and expense. On or before the 60th day, the defendant shall submit, on notice to the plaintiff, a proposal of the further submissions he wishes to make as part of the record of the inquest, a list of witnesses, if any, he wishes to present for the Court's consideration and a written summary of their testimony. The defendant and or the plaintiff may, in addition, submit to the Court any proposal for settlement of the damages claimed by the plaintiff. All duplication costs and court transcripts shall be borne by the defendant in advance.

The plaintiff shall have thirty (30) days to respond the defendant's submissions along with any motions in limine.

DECISION

The Court reserves the right to reopen the inquest for the purposes of hearing further testimony and the receipt of further evidence. In the event that the Court determines the need for further testimony, the Court shall do so on notice to both parties with an opportunity for motions in limine from either side. Based on the above, it is

ORDERED that the motion to vacate the default judgement is DENIED; and it is further

ORDERED that this Court shall RESERVE decision on the inquest currently pending before it until the procedures outlined in the order have been completed; and it is further [*4]

ORDERED that the defendant, at his own cost and expense, shall have the opportunity to review the inquest proceedings conducted on December 4, 2003, and submit within sixty (60) days of this order, on notice to the plaintiff, a proposal of what further submissions he wishes to make as part of the record of the inquest, a list of witnesses, if any, he wishes to present for the Court's consideration, and a written summary of their proposed testimony; and it is further

ORDERED that the defendant and the plaintiff may, during the same sixty (60) day time period, submit a proposal for settlement of the damages claimed by the plaintiff; and it is further

ORDERED the plaintiff herein shall have thirty (30) days to respond to any of the defendant's submissions and to make any further submissions, on notice to the defendant, including, but not limited to, any motions in limine.

SO ORDERED.E N T E R:

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Dated: Plattsburgh, New YorkPatrick R. McGill

February 3, 2004Acting Supreme Court Justice

File name: bvm\supreme-cvl\Kocsis-0306-dec1