In this case, wrote the Appellate Division, we address the issue of whether or not a plaintiff who has been granted a default judgment on the issue of liability in a case seeking compensation for personal injuries arising from a motor vehicle accident is required to demonstrate the element of serious injury at the inquest on damages. For the reasons that follow, we conclude that, unless the issue of serious injury has been previously determined, the plaintiff must demonstrate at the damages inquest proof of a serious injury before there can be any recovery for pain and suffering arising from a motor vehicle accident.

Plaintiff sued defendant for injuries sustained in a 1999 auto accident. Defendant defaulted and was denied leave to submit an answer.

Following an inquest on the issue of damages, the court entered judgment in favor of the plaintiff in the principal sum of $200,000. Thereafter, on appeal by the defendant, this court reversed the judgment on the ground that certain evidence was improperly admitted, and remitted the matter for a new inquest at which the plaintiff will be required to establish, through admissible evidence, his damages, if any (Abbas v Cole, 7 AD3d 649).

After the new inquest was held, the Supreme Court concluded as follows:

The court finds that the evidence presented by plaintiff at inquest was insufficient as a matter of law to establish that plaintiff sustained a serious injury within the meaning of Insurance Law 5102(d) and that defendant is, therefore, entitled to a directed verdict dismissing the action.

The Appellate Divisionaffirmed:

[A] plaintiff who seeks damages for pain and suffering arising from a motor vehicle accident must first establish that he or she has met or exceeded a serious injury threshold. [T]he question of what constitutes a serious injury has repeatedly engaged the judiciary and continues to be litigated. However, what has always been clear is that in an action arising from a motor vehicle accident, serious injury is a threshold issue. Indeed, the allegation of serious injury is a requirement of the complaintand thus a necessary element of a prima facie case thereunder.

We are now called upon to clarify the somewhat muddied waters surrounding the subject of whether an injury that meets or exceeds such a threshold is a necessary element to be proven upon an inquest for damages, i.e., after the plaintiff has obtained a default judgment on the issue of liability. While it is true that a defaulting defendant admits all traversable allegations in the complaint, including the basic issue of liability, an allegation of damage is not a traversable allegation and, therefore, a defaulting defendant does not admit the plaintiffs conclusion of damages.

We also note that no distinction should be drawn in this regard between a default premised upon the striking of the answer and a default in answering, since the two instances are functional equivalents.

However, the peculiar nature of a serious injury claim crosses the boundaries of both the liability and the damages spheres of a lawsuit. While the injuries sustained by a plaintiff in an action arising from a motor vehicle accident constitute the measure of his or her damages, it is the serious nature of those injuries which must be established before any recovery for pain and suffering can be obtained.

In fact, in the case of Perez v State of New York (215 AD2d 740, 741, 742), this court has previously stated:

As a general principle, the liability phase of a bifurcated trial is not the proper juncture at which to adjudicate issues regarding the severity of the injuries of the party prosecuting the case. Indeed, in a jury trial, the jury is commonly instructed to decide only the question of liability and to disregard as irrelevant any reference to injuries or medical treatment. As such, during the liability portion of a bifurcated trial arising out of an automobile accident, the fact-finder should be concerned with the apportioning of fault among the parties whose negligence it finds to have been a proximate cause of the accident (see DiMauro v Metropolitan Suburban Bus Auth., 105 AD2d 236, 246). Issues which pertain to the extent of the injuries suffered by a plaintiff, including whether a plaintiff suffered a serious injury as such term is defined in Insurance Law 5102(d), should generally be left for the damages phase of the trial (see e.g., Keller v Terr, 176 AD2d 921; Moreno v Roberts, 161 AD2d 1099).

Furthermore, by requiring the plaintiff, even upon the default of the defendant, to nevertheless submit proof that he or she has sustained a serious injury, we are 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. Indeedwhen a plaintiff is granted summary judgment on the issue of liability without opposition from the defendant, the grant of such partial summary judgment does not include a determination of the plaintiffs claim that he or she has sustained a serious injury as defined by Insurance Law 5102(d).

The court concluded, Therefore, on the record before us, and the conclusions reached herein, we affirm the order and judgment appealed from, with costs, and hold that the trial court properly dismissed the complaint based upon the plaintiffs failure to establish at the inquest a prima facie case of serious injury as that term is defined in Insurance Law 5102(d).

Abbas v. Cole, (2007 NY Slip Op 06092) (Appellate Division, Second Department) (Santucci, J)