Winters v. Atlantic Dev. Corp.

Winters v Atlantic Dev. Corp. (2022 NY Slip Op 02969) Winters v Atlantic Dev. Corp. 2022 NY Slip Op 02969 Decided on May 03, 2022 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: May 03, 2022 Before: Manzanet-Daniels, J.P., Gesmer, Moulton, Mendez, Higgitt, JJ. Index No. 153548/19 Appeal No. 15861 Case No. 2022-00055 [*1]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. 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 AD3d 466, 466 [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 AD3d 109 [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 AD3d 528, 529 [1st Dept 2019]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: May 3, 2022