Opinion
15861 Index No. 153548/19 Case No. 2022–00055
05-03-2022
Michael WINTERS, Plaintiff–Appellant, v. ATLANTIC DEVELOPMENT CORP., Defendant–Respondent, Lauran Walk, Defendant.
Law Offices of Bruce E. Cohen & Associates, P.C., Melville (Mirela Blanary of counsel), for appellant. Montfort, Healy, McGuire & Salley LLP, Garden City (Magda DeMoya Coyle of counsel), for respondent.
Law Offices of Bruce E. Cohen & Associates, P.C., Melville (Mirela Blanary of counsel), for appellant.
Montfort, Healy, McGuire & Salley LLP, Garden City (Magda DeMoya Coyle of counsel), for respondent.
Manzanet–Daniels, J.P., Gesmer, Moulton, Mendez, Higgitt, JJ.
Order, Supreme Court, New York County (Richard G. Latin, J.), entered August 9, 2021, which denied plaintiff's motion to vacate an order of the same court and Justice, dated April 16, 2021, which granted defendant Atlantic State Development Corp.’s unopposed motion for summary judgment dismissing the complaint against it, unanimously reversed, in the exercise of discretion, without costs, the motion granted, and the matter remanded for further proceedings.
Plaintiff set forth a reasonable excuse for his failure to timely oppose Atlantic's summary judgment motion, and his deposition testimony established the merit of his Labor Law § 240(1) claim (see CPLR 5015[a][1] ; Morales v. Marion Ave. Mgt. LLC, 188 A.D.3d 466, 466, 131 N.Y.S.3d 890 [1st Dept. 2020] ). There is no evidence of an intent to delay or abandon the action (see DePompo–Seff v. Genovese Drug Stores, Inc., 13 A.D.3d 109, 785 N.Y.S.2d 446 [1st Dept. 2004] ), or that Atlantic is prejudiced by the delay, and public policy supports resolving this case on the merits (see Genao v. Salcedo Maintenance Corp., 168 A.D.3d 528, 529, 89 N.Y.S.3d 897 [1st Dept. 2019] ).