Mitchell Stern, appellant, v. Warren George, Inc., et al., defendants, Lilly Construction Co., Inc., respondent. (2011)

Submitted-February 9, 2011

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Richmond County (McMahon, J.), dated March 2, 2010, as granted that branch of the motion of the defendant Lilly Construction Co., Inc., pursuant to CPLR 317 which was to vacate a judgment of the same court entered August 21, 2007, upon its failure to appear or answer the complaint.

ORDERED that the order dated March 2, 2010, is affirmed insofar as appealed from, with costs.

The Supreme Court properly granted that branch of the respondent's motion which was pursuant to CPLR 317 to vacate the judgment entered upon its failure to appear or answer (see CPLR 317;  Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 142-143;  Taieb v. Hilton Hotels Corp., 60 N.Y.2d 725, 728;  Reyes v. DCH Mgt., Inc., 56 AD3d 644;  Franklin v. 172 Aububon Corp., 32 AD3d 454).   The Supreme Court providently exercised its discretion in extending the one-year limitation period set forth in CPLR 317 in light of the potentially meritorious defense asserted by the respondent, the short delay after the limitation period expired in moving to vacate the judgment, and the public policy of determining actions on the merits (see CPLR 2004;  Girardo v. 99-27 Realty, LLC, 62 AD3d 659, 660;  F & C Gen. Contrs.   Corp. v. Atlantic Mut. Mtge. Corp., 202 A.D.2d 629, 629-630;  Allen v. Preston, 123 A.D.2d 303, 303-304;  Levine v. Berlin, 46 A.D.2d 902, 903).

MASTRO, J.P., ANGIOLILLO, BALKIN, LOTT and MILLER, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court