Koppell River Realty, Inc. v. Rodriguez

Order, Supreme Court, Bronx County (Dominic R. Massaro, J. ), entered April 9, 2010, which, in this action seeking to recover broker commissions relating to the sale of certain real property, granted plaintiff’s motion for a default judgment against defendants-appellants Finger and Gutierrez and denied appellants’ cross motion to dismiss the complaint as against them, unanimously affirmed, without costs. Supreme Court providently exercised its discretion in finding that appellants’ tactical choice not to answer the complaint was not an excusable mistake (see 114 W. 26th St. Assoc. LP v Fortunak, 22 AD3d 346 [2005]; see also 300 W. 46th St. Corp. v Clinton Pious. W. 46th St. Partners, L.P., 19 AD3d 136 [2005]). Furthermore, since liability against appellants has been effectively decided by their default, it is appropriate to sever the inquest as against them from the action against the remaining defendant (see CPLR 3215 [a]). We have considered appellants’ remaining arguments and find them unavailing. Concur — Saxe, J.P., Acosta, DeGrasse, Abdus-Salaam and Manzanet-Daniels, JJ.