The following e-filed documents, listed by NYSCEF document number (Motion 002) 22, 23, 24, 25, 26, 40 were read on this motion to RENEW/REARGUE.

The following e-filed documents, listed by NYSCEF document number (Motion 003) 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39 were read on this motion to RENEW/REARGUE.

In this action to collect allegedly unpaid tolls, plaintiff previously moved for default judgment. In an August 2022 order, this court denied the motion and dismissed the action because plaintiff had not taken proceedings for the entry of default judgment within one year of defendant's default, as required by CPLR 3215 (c). (Port Auth. of NY & N.J. v Amigo Tr. LLC, 76 Misc 3d 720, 721 [2022].) Plaintiff now moves for leave to reargue that order.^[FN1] Leave to reargue is granted; on reargument, this court adheres to its original determination.

In denying plaintiff's default-judgment motion and dismissing the action, this court relied [*2]on the fact that plaintiff did not move for default judgment until April 2022, nearly two years after plaintiff completed service in May 2020. (See id.) Plaintiff now argues that this court failed to allow properly for the effect of the COVID-19-related tolling period imposed by a series of executive orders issued by Governor Cuomo over the course of 2020; and that once the COVID-19 toll is taken into account, plaintiff's delay in moving for default judgment was limited and should be excused by the court. (See NYSCEF No. 28 at ¶¶ 11, 19, 68-74.)

This court agrees with plaintiff that the question of how to calculate and apply the COVID-19 toll is significant. Leave to reargue is therefore granted to ensure that plaintiff's tolling-related arguments are heard. This court does not, however, agree with plaintiff's reading of the key appellate precedent construing and applying the COVID-19 toll, Brash v Richards (195 AD3d 582 [2d Dept 2021]). As this court understands Brash, the one-year deadline set by CPLR 3215 (c) expired well before plaintiff prepared or filed its default-judgment motion here, even accounting for the COVID-19 toll. On reargument this court adheres to its original determination.^[FN2]

The COVID-19 toll imposed by executive orders lasted approximately 8 months, from March 20, 2020, to November 3, 2020. (Id. at 583-584.) Plaintiff argues that because a "toll suspends the running of the applicable period of limitation for a finite time period, and the "period of the toll is excluded from the calculation of the relevant time period" (id. at 582 [quotation marks and alterations omitted]), then "any actions where the statute of limitations are implicated receive an additional eight months added to the statutory limitation period"—i.e., nine months in this case, instead of 30 days. (NYSCEF No. 28 at ¶ 11; id. at ¶ 15.) Plaintiff's conclusion does not follow.

As Brash explains, when a statutory limitations period, such as a defendant's time to appear or respond, is tolled, the limitations "clock" stops running for the duration of the toll. (195 AD3d at 582, citing Chavez v Occidental Chem. Corp., 35 NY3d 492, 505 n 8 [2020].) Where, as here, the event triggering the limitations period occurs while the toll is in effect, the limitations clock does not start running until the end of the tolled period; but it then runs as it otherwise normally would. Thus, in Brash, the triggering event (service of notice of entry of the order appealed from) occurred on October 2, 2020, during the COVID-19-tolled period. (Id. at 582.) Brash held that the time in which the plaintiff in that case could notice her appeal therefore began to run when the COVID-19 toll ended—i.e., that plaintiff had 30 days from November 3, [*3]2020, to file the notice of appeal. (Id. at 585.)

A similar analysis applies here. Plaintiff served defendant with process in February and April 2020. (See NYSCEF Nos. 4-6.) Treating the later date of service as the operative date for appearance/default purposes, because doing so is more favorable to plaintiff, and taking into account the COVID-19 toll, the 30-day period for defendant to appear and respond was suspended between April 2020 and November 3, 2020. Once the COVID-19 toll ended, defendant had 30 days from November 3 to appear. Defendant, having failed to do so, was in default as of December 4, 2020. Plaintiff's one-year period to move for default judgment, in turn, expired on December 6, 2021 (taking into account that December 4, 2021, was a Saturday). Plaintiff's default-judgment motion, filed April 27, 2022 (see NYSCEF No. 7), was untimely.

For this same reason, plaintiff's current argument for overlooking the untimeliness of its default-judgment motion—not offered on that motion—is unpersuasive. Plaintiff does not provide any details or specifics about why it was unable to move for default judgment in 2021, within the one-year CPLR 3215 (c) period. (See NYSCEF No. 28 at ¶¶ 68-74.) Plaintiff instead represents only that staffing limitations, resulting from "staff and attorneys working alternate days at the office and at their homes in an effort to reduce the risk of COVID-19 exposure," caused a delay between the motion's being prepared on January 14, 2022, and its being filed on April 27, 2022. (Id. at ¶¶ 70-71.) But, as discussed above, the one-year motion deadline had already expired as of January 14, 2022. In other words, the only delay that plaintiff has specifically identified and explained did not affect the (un)timeliness of plaintiff's default-judgment motion. Plaintiff has not, on this record, shown "sufficient cause . . . why the complaint should not be dismissed" as abandoned. (CPLR 3215 [c].)

Accordingly, it is

ORDERED that the branch of plaintiff's motions seeking leave to reargue this court's order entered August 16, 2022, are granted; and it is further

ORDERED that on reargument, this court adheres to its prior determination, as set forth in the August 16 order; and it is further

ORDERED that plaintiff serve a copy of this order with notice of its entry on defendant, by certified mail, return receipt requested, directed to defendant's last-known address.