Peck v. Ernst Bros.

86 A.D.2d 692, 446 N.Y.S.2d 517, 1982 N.Y. App. Div. LEXIS 15238

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 7, 1982
• Status: Published

Opinion

Appeal from an order of the County Court of Saratoga County (Brown, J.), entered June 2, 1980, which granted defendant’s motion to vacate a default judgment in favor of plaintiffs. In an action brought by plaintiffs to recover damages for allegedly defective remodeling by defendant of plaintiffs’ home, defendant defaulted and an inquest was taken, but plaintiffs consented to the opening of the default. When defendant failed to appear a second time, another inquest was held and a judgment was entered in plaintiffs’ favor for $4,731. Denial of defendant’s motion to vacate the default judgment was affirmed with the observation that the moving papers failed to demonstrate the existence of a meritorious defense (Peck v Ernst Bros., 73 AD2d 735). Defendant then brought a second motion to vacate the judgment, this time claiming that sufficient evidence of damages had not been presented at the inquest. That motion was granted to the extent of vacating the default judgment on the issue of the amount of damages only. This appeal followed after plaintiffs were granted an extension of time to serve a notice of appeal pursuant to CPLR 5520 (subd [a]) (see Peck v Ernst Bros., 81 AD2d 940). Defendant had full opportunity to raise the issue of the sufficiency of the evidence of damages on the first motion to vacate the default judgment, but chose not to do so. Given the extensive procedural history of this four- and one-half year-old suit, both fairness and judicial economy dictate a reversal. Order reversed, on the law and the facts, without costs, and motion by defendant denied. Main, J. P., Casey, Mikoll, Yesawich, Jr., and Weiss, JJ., concur.