| Girardo v 99-27 Realty, LLC |
| 2009 NY Slip Op 03693 [62 AD3d 659] |
| May 5, 2009 |
| Appellate Division, Second Department |
| Carlos Alberto Girardo, Appellant, v 99-27 Realty, LLC,Respondent, et al., Defendant. |
—[*1] The Tsang Law Firm, P.C., New York, N.Y. (Michael Tsang of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Taylor, J.), dated July 14, 2008, which granted the motionof the defendant 99-27 Realty, LLC, for leave to reargue that defendant's prior motion, inter alia,pursuant to CPLR 317 to vacate a judgment of the same court entered May 9, 2006, upon itsdefault in appearing and answering, which had been denied in an order dated January 30, 2008,and upon reargument, granted the motion, inter alia, pursuant to CPLR 317 to vacate thejudgment.
Ordered that the order dated July 14, 2008 is affirmed, with costs.
The Supreme Court providently exercised its discretion in granting the respondent leave toreargue and, upon reargument, granting the respondent's motion, inter alia, pursuant to CPLR317 to vacate the judgment entered against it upon its default in appearing and answering thecomplaint. CPLR 317 permits a defendant that has been "served with a summons other than bypersonal delivery" to defend the action upon a finding of the court that the defendant "did notpersonally receive notice of the summons in time to defend and has a meritorious defense"(Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986] [internalquotation marks omitted]; see Taieb v Hilton Hotels Corp., 60 NY2d 725, 728 [1983]; Reyes v DCH Mgt., Inc., 56 AD3d644 [2008]; Franklin v 172Aububon Corp., 32 AD3d 454, 455 [2006]; Brockington v Brookfield Dev. Corp.,308 AD2d 498 [2003]). The respondent, which was served through delivery of process to theSecretary of State, established that it did not personally receive notice of the summons in time todefend (see Calderon v 163 OceanTenants Corp., 27 AD3d 410, 410-411 [2006]; [*2]Ford v 536 E. 5th St. Equities, 304 AD2d 615 [2003]).Furthermore, there is no basis to conclude that the respondent deliberately attempted to avoidnotice of the action (see Tselikman vMarvin Ct., Inc., 33 AD3d 908, 909 [2006]; Hon-Kuen Lo v Gong Park Realty Corp., 16 AD3d 553 [2005]; Grosso v MTO Assoc. Ltd. Partnership,12 AD3d 402, 403 [2004]). In addition, the respondent established the existence of ameritorious defense (cf. Yannotti v FourBros. Homes at Heartland Condominium I, 24 AD3d 659, 660 [2005]; Zabbia v Westwood, LLC, 18 AD3d542, 544 [2005]; Myrow v City ofPoughkeepsie, 3 AD3d 480, 481 [2004]).
The Supreme Court providently exercised its discretion in extending the time period set forthin CPLR 317 in light of the respondent's excuse for the short delay in moving to vacate thejudgment and the public policy of determining actions on the merits (cf. CPLR 2004,2005; F & C Gen. Contrs. Corp. v Atlantic Mut. Mtge. Corp., 202 AD2d 629, 629-630[1994]; Allen v Preston, 123 AD2d 303, 303-304 [1986]; Levine v Berlin, 46AD2d 902, 903 [1974]). Rivera, J.P., Dillon, Covello, Eng and Hall, JJ., concur.