Carla Benjamin et al., Plaintiffs–Respondents, v. GCLR LLC (2021)

Order, Supreme Court, New York County (Carol R. Feinman, J.), entered May 16, 2019, which precluded defendants American University of Antigua and American Union of Antigua from participating in the damages trial, and sub silentio denied their motion in limine to enforce a prior evidentiary preclusion order against plaintiffs and their motion to preclude certain damages, unanimously modified, on the law, to vacate the language precluding defendants from participating in the damages trial, grant defendants' motion in limine to the extent of applying the preclusion order to the damages trial, and remand the matter for a determination on defendants' motion to preclude certain damages, and otherwise affirmed, without costs.

As a threshold matter, the order is appealable, because it decided a motion made on notice to enforce the preclusion order, and denied defendants' right to participate in the damages trial, thereby involving the merits of the controversy and affecting a substantial right (CPLR 5701[a][2][iv], [v];  see Rondout Elec., Inc. v. Dover Union Free School Dist., 304 A.D.2d 808, 810, 758 N.Y.S.2d 394 [2d Dept. 2003];  Credit Suisse First Boston v. Utrecht–America Fin. Co., 84 A.D.3d 579, 923 N.Y.S.2d 482 [1st Dept. 2011]).

This Court's decision in the prior appeal granting plaintiffs summary judgment on the issue of liability does not preclude defendants from participating in the damages trial and offering proof in mitigation of damages (see Jeffers v. American Univ. of Antigua, 169 A.D.3d 443, 93 N.Y.S.3d 36 [1st Dept. 2019]).  Defendants were never in default in this action, nor are the damages for a “sum certain or for a sum which can by computation be made certain” (see Rokina Opt. v. Camera King, Inc., 63 N.Y.2d 728, 730, 480 N.Y.S.2d 197, 469 N.E.2d 518 [1984], quoting CPLR 3215[a]).

We reject defendant's allegations that plaintiffs are not entitled to seek a refund of tuition based upon AUA's failure to fulfill its promise.  As this Court previously determined, “AUA breached the implied contract” by not delivering the “opportunity to take the NCLEX exam or enroll in Lehman College's ASN to BSN program in a timely fashion after graduation from AUA” (Jeffers, 169 A.D.3d at 444, 93 N.Y.S.3d 36).  However, the issue of whether plaintiffs can prove a particular category of damages is left to the trial court, as is the question of whether enforcement of the motion court's prior preclusion order bars any particular evidence at trial.

The Decision and Order of this Court entered herein on January 5, 2021 is hereby recalled and vacated (see M–828 decided simultaneously herewith).