Szulc v. Bateman

In an action, inter alia, to recover damages for breach of contract, the defendants appeal from (1) a decision of the Supreme Court, Orange County (Owen, J.), dated August 11, 2003, and (2) an order of the same court dated March 12, 2004, which denied their motion to vacate a judgment of the same court entered January 7, 2004, upon their default in appearing for a pretrial conference, which was in favor of the plaintiff and against them in the principal sum of $20,300. Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision (see Schicchi v Green Constr. Corp., 100 AD2d 509 [1984]); and it is further, Ordered that the order is reversed, on the law and as a matter of discretion, with costs, the motion is granted, the judgment is vacated, and the matter is remitted to the Supreme Court, Orange County, for a trial on the issue of damages; and it is further, Ordered that one bill of costs is awarded to the defendants. Pursuant to 22 NYCRR 202.27 (a), the Supreme Court awarded the plaintiff a judgment upon the defendants’ failure to appear at a pretrial conference. However, the Supreme Court improvidently exercised its discretion in declining to vacate the judgment since the defendants proffered a reasonable excuse for their failure to appear at the conference and a meritorious defense to the amount of damages claimed (see BBZZ Equities v Walter T. Gorman, P.E., P.C., 267 AD2d 266 [1999]). Since based upon the record it is clear that the defendants have admitted liability and are contesting only the amount of damages claimed, we remit the matter to the Supreme Court for a trial on the issue of damages only. Prudenti, P.J., Schmidt, Santucci, Luciano and Spolzino, JJ., concur.