M. Viaggio & Sons, Inc. v. City of New York

— In an action to recover damages for breach of contract, plaintiff appeals from an order of the Supreme Court, Queens County (Lerner, J.), dated February 2, 1982, which denied its motion for summary judgment and for an assessment of damages. Order modified, on the law, by directing that summary judgment be granted in favor of the plaintiff on the issue of liability only. As so modified, order affirmed, without costs or disbursements. On this appeal, the defendant concedes that plaintiff is entitled to summary judgment on the issue of liability. However, a trial is still required with respect to whether the contractual formula for computing plaintiff’s damages is void and unenforceable. Under the circumstances and in the interest of judicial economy, the amount of plaintiff’s damages should also be determined at that trial (see CPLR 3212, subd [e]; Lieberman v Larkin, 45 AD2d 965). Titone, J. P., Brown, Rubin and Boyers, JJ., concur.