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Kocsis v. McLean

Other Lower Courts

February 3, 2004

Ronald A. Kocsis, Plaintiff,
Dennis McLean, Defendant.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.


Patrick R. McGill, J.

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.


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 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.


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 judgment, 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 judgment 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 damages assessment. In fact, the plaintiff, in his ...

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