Plaintiff Granted Default Judgment On Liability Still Must Demonstrate "Serious Injury" At Inquest On Damages

Before there can be any recovery for pain and suffering arising from a motor vehicle accident, a plaintiff must demonstrate that he has suffered a "serious injury" within the meaning of Insurance Law § 5102(d). But what if a defendant defaults in answering the complaint, and thus concedes liability for the motor vehicle accident. Last week the Second Department in Abbas v Cole, 2007 NY Slip Op 06092 held that even when a defendant defaults, a plaintiff still must demonstrate the threshold requirement of a "serious injury" at an inquest on damages in order to recover pain and suffering damages. In so holding, the Court stated that it was comporting with the original legislative intent 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).

The Court stated that the only exception to this rule would be where the defaulting defendant has, in effect, conceded the issue of serious injury after same has been pleaded and raised by the plaintiff (see e.g., Beresford v Waheed, 302 AD2d 342 - law of the case doctrine precluded reconsideration of the "serious injury" issue).