[*1]
Port Auth. of N.Y. & N.J. v Malave
2022 NY Slip Op 51085(U) [76 Misc 3d 1230(A)]
Decided on November 4, 2022
Supreme Court, New York County
Lebovits, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on November 4, 2022
Supreme Court, New York County


Port Authority of New York & New Jersey, Plaintiff,

against

Carlos Malave, Defendant.




Index No. 450982/2020


Law Office of Peter C. Merani, P.C., New York, NY (Michael Zeleznock of counsel), for plaintiff.

No appearance for defendant.

Gerald Lebovits, J.

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). (See NYSCEF No. 16.) Plaintiff now moves without opposition for renewal. Leave to renew is granted; on renewal, this court adheres to its original determination.

In denying plaintiff's default-judgment motion and dismissing the action, this court relied on the fact that plaintiff did not move for default judgment until April 2022, nearly two years after plaintiff completed service in July 2020. (See id.) Plaintiff now argues that this court failed to allow properly for the effect of the COVID-19-related toll that existed for approximately eight months in 2020; and that taking that toll into account, plaintiff's delay in moving for default judgment was limited and should be excused by the court. The issue of COVID-19-related tolling and its interaction with CPLR 3215 (c) is significant enough to warrant the grant of leave [*2]to renew.[FN1] (See Port Auth. of NY & N.J. v Amigo Tr. LLC, 2022 NY Slip Op 51066[U], at *2 [Sup Ct, NY County Oct. 31, 2022] [same].) On renewal, this court adheres to its original determination.

Then-Governor Cuomo issued a series of executive orders imposing a COVID-19-related tolling period for statutes of limitations and the like from March 20, 2020, to November 3, 2020. (Brash v Richards, 195 AD3d 582, 583-584 [2d Dept 2021].) Because plaintiff served defendant in March 2020 while this toll was in effect (see NYSCEF No. 4), defendant's time to appear and respond did not begin to run until November 4, 2020. (See Amigo Tr., 2022 NY Slip Op 51066[U], at *2-3.) Defendant then had no more than 40 days to appear and respond.[FN2] (See id.) Defendant, having failed to do so, was in default no later than December 14, 2020. Plaintiff's one-year period to move for default judgment, in turn, expired no later than December 14, 2021. Plaintiff's default-judgment motion, initially filed April 21, 2022 (see NYSCEF No. 6), was untimely.

Plaintiff's explanation offered on this motion for overlooking the untimeliness of its default-judgment 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, beyond the vague implication that working remotely due to COVID-19 excusably impaired plaintiff's counsel's capacity to file motions as counsel normally would. That is not enough. (See Katz v Mangel, 173 AD3d 989, 990 [2d Dept 2019] ["Plaintiff's conclusory and unsubstantiated assertions failed to establish a reasonable excuse for [its] delay in seeking a default judgment."].)

Plaintiff appears to be relying on two orders issued by another justice of this court, each holding that the effect of COVID-19 in 2021 and 2022 was sufficient to excuse a failure to file timely default-judgment motions due in the spring and summer of 2022.[FN3] But the records in those actions reflects that one of the two cited orders dealt with a motion filed only three days late; and [*3]the other order addressed a motion filed two months late.[FN4] The motion here was filed more than five months late. In any event, to the extent that these decisions hold that a conclusory, generalized appeal to the effects of COVID-19 should suffice to excuse plaintiff's missing by five months a December 2021 default-judgment deadline, this court respectfully disagrees.[FN5]

Plaintiff also represents 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 February 3, 2022, and its being filed on April 21, 2022. (Id. at ¶¶ 70-71.) But, as discussed above, the one-year motion deadline had already expired as of February 3, 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 to the extent plaintiff's motion seeks leave to reargue this court's order entered August 17, 2022, leave to reargue is denied; and it is further

ORDERED that the branch of plaintiff's motion seeking leave to renew this court's order entered August 17, 2022, is granted; and it is further

ORDERED that on renewal, this court adheres to its prior determination, as set forth in the August 17 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.


DATE 11/4/2022

Footnotes


Footnote 1:To the extent that plaintiff also seeks reargument of this court's discussion, in dicta, of possible statute-of-limitations bars to part of plaintiff's claims in this action (see NYSCEF No. 23 at 11-18), leave to reargue is denied, given that this discussion was not necessary to the court's determination on the prior motion. (See Port Auth. of NY & N.J. v Amigo Tr. LLC, 2022 NY Slip Op 51066[U], at *1 n 2 [Sup Ct, NY County Oct. 31, 2022].

Footnote 2:Plaintiff served defendant by nail-and-mail service under CPLR 308 (4). (See NYSCEF No. 3.) Nail-and-mail service is complete 10 days after filing of the affidavit of service (see CPLR 308 [4]); and a defendant has 30 days from the completion of service to appear and respond (see CPLR 320 [a]). For purposes of this decision, this court assumes that neither the 10-day period following the filing of the affidavit of service, nor the ensuing 30-day period to appear or respond, began to run until the end of the COVID-19 toll. In the circumstances of this motion, that assumption favors movant.

Footnote 3:See NYSCEF No. 23 at ¶ 74, citing Port Authority of NY & N.J. v Mirianny Transp., Index No. 450485/2021, Decision & Order on Motion at 1, NYSCEF No. 17 (Aug. 22, 2022) (Lyle E. Frank, J.); Port Authority of NY & N.J. v Valentine, Index No. 450986/2021, Decision & Order on Motion at 1, NYSCEF No. 18 (Aug. 17, 2022) (Lyle E. Frank, J.). See also NYSCEF No. 30 (reproducing orders).

Footnote 4:See Valentine, Index No. 450986/2021, NYSCEF Nos. 4 (affidavit of service), 6 (notice of motion) (three days late); Mirianny Transp., Index No. 450485/2021, NYSCEF Nos. 4 (affidavit of service), 6 (notice of motion) (two months late).

Footnote 5:Plaintiff also cites a decision of Supreme Court, Westchester County, holding on a CPLR 5015 motion to vacate that COVID-19-related disruptions provided a reasonable excuse for a defendant's default. (See NYSCEF No. 23 at ¶ 73, citing Maloof Architectural Metals, Inc. v Flintlock Construction Services, LLC, Index No. 67566/2019, Decision & Order on Motion at 7, NYSCEF No. 51 [Jan. 26, 2021].) But the explanation provided by defendant in Maloof Architectural Metals was detailed and specific; dealt with an instance of law-office failure that occurred in early May 2020, far closer to the start of the pandemic than plaintiff's motion deadline in this case; and concerned a default in answering a complaint, not a failure to move for judgment within one year after a default. (See Index No. 67566/2019, NYSCEF No. 51, at 2-3.) That decision thus provides little support to plaintiff's position here.