Kristeel Construction, Inc. v Kulka Construction Corp.

Kristeel Constr., Inc. v Kulka Constr. Corp. 2006 NY Slip Op 05919 [31 AD3d 717] July 25, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 20, 2006

Kristeel Construction, Inc., Respondent,
v
Kulka Construction Corp. et al., Appellants, et al., Defendants.

—[*1]

In an action, inter alia, to recover damages for breach of contract, the defendants Kulka Construction Corp., Jack Kulka, and International Fidelity Insurance Company appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Burke, J.), dated January 12, 2005, as granted those branches of the plaintiff's motion which were for leave to enter judgment on the first, fourth, and fifth causes of action, upon their default in appearing or answering the complaint, and for a permanent stay of arbitration, and which denied their cross motion for summary judgment limiting the plaintiff's damages on the first, second, and third causes of action, for summary judgment dismissing the fourth cause of action as time-barred or to change venue of the fourth cause of action, for summary judgment dismissing the fifth cause of action, and for an award of costs and an attorney's fee.

Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the appellants' contention, the Supreme Court providently exercised its discretion in granting the plaintiff leave to enter judgment on the first, fourth, and fifth causes of action upon the appellants' default. The Supreme Court properly characterized the appellants' behavior in failing to timely file their answers without offering any excuse therefor as dilatory (see [*2]Torres v Houses "R" Us, 182 AD2d 684 [1992]; Trapani v Imlug & Seven Corp., 140 AD2d 690, 691-692 [1988]; cf. Lehrman v Lake Katonah Club, 295 AD2d 322 [2002]).

The Supreme Court correctly denied the appellants' cross motion for summary judgment and for an award of costs and an attorney's fee because they are in default. Crane, J.P., Spolzino, Fisher and Lunn, JJ., concur.