Quantum of Damages at Inquest Can Only Be Contested After Issue of Serious Injury Has Been Determined

In Zecca v. Riccardelli NYLJ at 21, col. 1 [June 1, 2001] the plaintiff was involved a motor vehicle accident. The plaintiff moved for and was granted partial summary judgment on the issue of liability. The plaintiff then moved for an order to preclude the defendant from raising the issue of "serious injury" during the damages phase of the trial, arguing that summary judgment on liability also determined that the plaintiff sustained a "serious injury" or has met the verbal threshold requirement of NY Insurance Law 5102 (d) (McKinney 2001). Justice Lebowitz granted the motion relying on the First Department's decision in Maldonado v. Depalo 277 A.D.2d 21, 715 N.Y.S.2d 245 [App Div 1st Dept] which he argued held that partial summary judgment on the issue of liability also decided the issue of "serious injury." However, the underlying trial court decision in Maldanado is a default judgment, not a summary judgment (See, Maldonado v. Depalo, Sup Ct, Bronx County, May 17, 2000, Katz, J., index No. 21133/97). In Maldonado, the Bronx County Supreme Court had already stricken the defendant's answers and had set the matter down for an inquest. In that action, the court held that a defaulting defendant may only contest the quantum of damages at inquest and is deemed to have admitted all other aspects of the complaint, including the verbal threshold issue of "serious injury."