Beresford v. Waheed

In Beresford v. Waheed (302 A.D.2d 342 [2003]) in opposing a prior motion by plaintiff to enter a default judgment and in support of his cross motion to compel acceptance of his proposed answer, the defendant alleged the existence of a meritorious defense but did not address the issue of serious injury. The motion court granted plaintiff's motion and denied defendant's cross motion. Said order was affirmed on appeal (288 A.D.2d 170, 732 N.Y.S.2d 374 [2001]) with the Appellate Division holding that defendant failed to establish either a meritorious defense or an excusable default. Following the inquest in Beresford, the defendant again appealed and sought to raise the issue of serious injury. The Appellate Division (302 A.D.2d 342, 754 N.Y.S.2d 350 [2003]) held that the issue of serious injury had been fully litigated on the prior motion and there was a final adjudication on the merits with respect thereto. As the order was affirmed on appeal, by virtue of the doctrine of law of the case, the defendant was precluded from raising said issue. Unlike a motion for summary judgment which can limit its scope to only the issue of liability, and leave for subsequent determination the extent of injury, by necessity, in opposing a motion to enter a default judgment, both excusable default and a meritorious defense must be shown. The defendant in Beresford was obliged to raise all of his defenses in opposing the motion.