MONTGOMERY v. CITY OF NEW YORK

ORDERED that the order is modified, by deleting the provision thereof granting the motion and substituting therefor a provision denying the motion; as so modified, the order is affirmed, with costs to the plaintiffs.

While a defendant who defaults in appearing or answering is entitled to present testimony and evidence and to cross-examine a plaintiff's witnesses at the inquest on damages, such a defendant forfeits his or her right to conduct discovery in preparation for the inquest ( see Reynolds Securities v. Underwriters Bank Trust Co., 44 N.Y.2d 568, 573; Minicozzi v. Gerbino, 301 A.D.2d 580). Therefore, the Supreme Court improvidently exercised its discretion in granting the defendants' motion.

The Supreme Court properly exercised its discretion in denying the plaintiffs' cross motion to impose a sanction pursuant to 22 NYCRR 130-1.3 (see Wagner v. Goldberg, 293 A.D.2d 527).

SANTUCCI, J.P., SMITH, LUCIANO, SCHMIDT and MASTRO, JJ., concur.