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FILED: NEW YORK COUNTY CLERK 09/20/2022 04:57 PM INDEX NO. 451061/2020
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 09/20/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
______________________________________________________Ç
PORT AUTHORITY OF NEW YORK & NEW JERSEY, Index No.: 451061/2020
Plaintiff,
- against - AFFIRMATION IN
SUPPORT
KAREN DUFFY,
Defendant.
_____________________________________Ç
Derek Soltis an attorney admitted to practice before the Courts of this State affirms the truth
of the following under the penalty of perjury:
I am an associate of the Law Offices of Peter C. Merani, P.C., attorneys for the
Plaintiff herein and as such I am fully familiar with the facts and circumstances of this
action based upon a review of the case file and the investigation materials contained
therein.
BACKGROUND
1. The PORT AUTHORITY OF NEW YORK & NEW JERSEY, is a body
corporate and politic created by Compact between the States of New York and New Jersey
(154 Laws of N.Y., 1921; Ch. 151, Laws of N.J., 1921) with the consent of the Congress
of the United States, and has a registered office at One Path Plaza, Jersey City, New Jersey
07306.
2. At all relevant times, the PORT AUTHORITY OF NEW YORK & NEW
JERSEY, owned, operated, maintained and controlled certain premises known respectively
as the George Washington Bridge, the Lincoln Tunnel, the Holland Tunnel, the Bayonne
Bridge, the Outerbridge Crossing and the Goethals Bridge, which are all components of
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the PORT AUTHORITY OF NEW YORK & NEW JERSEY's Interstate Transportation
Network.
3. No vehicular traffic is permitted to use the PORT AUTHORITY OF NEW
YORK & NEW JERSEY's interstate bridges or tunnels except upon payment of such tolls
and other charges as may be from time to time prescribed by the Port Authority. N.Y.
Unconsolidated Laws §6802, N.J.S.A. 32:1-154.2.
4. THE PORT AUTHORITY OF NEW YORK & NEW JERSEY has set tolls
for the use of its facilities and provided for their collection from motorists at its facilities.
5. Among the methods provided for the payment of tolls by motorists, is a
method of electronic payment commonly known and referred to as E-ZPass®.
6. The owner of any motor vehicle required to pay a toll for the use of THE
PORT AUTHORITY OF NEW YORK & NEW JERSEY's facilities is responsible for the
timely payment of that toll.
7. The PORT AUTHORITY OF NEW YORK & NEW JERSEY's
implementation and use of the E-ZPass® system is for the benefit of the general public
and, when properly used, it allows the PORT AUTHORITY OF NEW YORK & NEW
JERSEY to process a greater number oftoll transactions more expeditiously, thereby easing
traffic congestion and shortening travel times for motorists using the PORT AUTHORITY
OF NEW YORK & NEW JERSEY's bridges and tunnels.
8. The intentional and improper use of exclusive E-ZPass® lanes for purposes
of evading the payment of tolls deprives the PORT AUTHORITY OF NEW YORK & NEW
JERSEY of toll income to which it is entitled, improperly burdens the operation of its
electronic toll collection system and diminishes efficiency and effectiveness of the PORT
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AUTHORITY OF NEW YORK & NEW JERSEY's investment in E-ZPass® as a means of
reducing the substantial traffic congestion at its interstate bridges and tunnels and otherwise
adversely affects and improperly interferes with the operation and maintenance of the
Interstate Transportation Network.
9. Exclusive E-ZPass® lanes are clearly signed to inform motorists that the
lanes are not for the use of those who would pay their tolls in cash.
10. Toll collectors are not assigned to staff the exclusive E-ZPass® lanes, where
collection of tolls is exclusively made via the electronic E-ZPass® system.
11. The exclusive E-ZPass® lanes are provided for use of those who have made
prior arrangements to pay the toll through the use of valid E-ZPass® equipment and have
an agreement by which they agree to use their assigned E-ZPass® transponder device only
when their E-ZPass® account is in good standing and when their account has sufficient
funds needed to pay the tolls as and when charged.
12. While other staffed toll lanes are provided and are still available to both E-
ZPass® and non-E-ZPass® patrons, E-ZPass® patrons using the exclusive E-ZPass® lanes
are benefited by not being required to stop for a payment transaction with a toll collector.
13. Motorists who utilize the exclusive E-ZPass® lanes of the PORT
AUTHORITY OF NEW YORK & NEW JERSEY's bridges and tunnels without E-ZPass®
agreements and without the transponders actually needed to electronically pay the toll
charges, and who do not otherwise pay the toll in cash at the time of crossing, are toll
evaders.
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14. Toll evaders and E-ZPass® patrons who violate the terms of their
agreements are responsible for the outstanding tolls plus an administrative fee, costs and
attorney's fees for each improper use of E-ZPass® toll collection lanes.
15. Because highly visible signage provides notice to motorists that exclusive
E-ZPass® lanes are not available for the payment of cash and motorists E-
tolls, using
ZPass® are not required to, and do not, stop to make cash payments of tolls, motorists
using the PORT AUTHORITY OF NEW YORK & NEW JERSEY's facilities are fully
aware of, and on notice of, the restricted nature of the exclusive E-ZPass® lanes because
each lane is clearly marked.
16. Motorists using the PORT AUTHORITY OF NEW YORK & NEW
JERSEY's facilities are charged with knowing and understanding the foregoing aspects of
E-ZPass® and how it operates at THE PORT AUTHORITY OF NEW YORK & NEW
JERSEY's facilities.
17. The PORT AUTHORITY OF NEW YORK & NEW JERSEY employs a toll
collection system that identifies motorists exclusive E-
monitoring improperly using
ZPass® lanes wherein a toll due is not paid.
18. The owner of the vehicle identified as exclusive E-
improperly using
ZPass® lanes is provided with a written citation identifying the violation or violations with
specificity, including the amount of toll due, the time and place of the violation and other
details sufficient to identify the vehicle.
19. These citations are sent to the owner at the address provided on the
offending vehicle's motor vehicle registration.
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20. Such citations provide the owner of the vehicle with notice that the vehicle
has used the PORT AUTHORITY OF NEW YORK & NEW JERSEY's facilities without
paying the requisite toll, as well as advising that use of exclusive E-ZPass® lanes is
restricted to valid E-ZPass® account holders as set forth above.
21. This action was initiated by THE PORT AUTHORITY OF NEW YORK &
NEW JERSEY against Karen Duffy to collect unpaid tolls and administrative fees
associated with the unpaid tolls.
22. Defendant(s) traveled through the EZ Pass lane at various bridges and tunnels
under the dominion and control of THE PORT AUTHORITY OF NEW YORK & NEW
JERSEY without paying the toll on 558 occasions between 1/7/2013 and 2/22/2018. As a
result, Defendant(s) owes PORT AUTHORITY OF NEW YORK & NEW JERSEY $7,507
for unpaid tolls and $27,750 for unpaid administrative fees for a total of $35,257.
Report"
23. The Port Authority maintains a "Violations Citation Detail
(hereafter "VCD report") in the regular course of its business. The VCD report contains
all of the information for each toll violation and/or administrative fee, including:
" The date of the violation
" The exact time of the violation
" The license plate number
" The Plate State
" The Plaza and ID
Agency
" The lane number that the violation occurred in
" The citation number
" The status of the violation
" The citation level
" The amount of the toll or administrative fee
monetary
" The amount paid
" The balance due
A copy of the VCD report is annexed hereto as EXHIBIT A.
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24. In the case at bar, Plaintiff served Defendant(s) with the Summons and
Complaint on 3/19/2020. See attached Summons and Complaint with Affidavit of Service
annexed at EXHIBIT B.
25. A second copy of the Summons and Complaint was mailed to the Defendant
6/1/2020. See attached Affirmation of Second Mailing annexed at EXHIBIT C.
26. Defendant did not respond to said second mailing.
27. On September 16, 2020, plaintiff filed a motion to enter default judgment
against defendant.See plaintiff's previous motion to enter default judgment annexed hereto
as Exhibit D.
28. On April 21, 2021, this Court granted plaintiff's motion to enter default
judgment against defendant and that damages are to be determined via an inquest hearing.
See court order granting judgment also annexed hereto at EXHIBIT D.
29. Plaintiff learned that the matter was adjourned to September 20, 2022.
However, plaintiff's appearing attorney did not have access to the virtual court calendar
appearance link.
30. On September 20, 2022, this Court dismissed plaintiff's case as plaintiff
failed to appear at the Court's judgment against defendant. See Judge Arlene P. Bluth's
September 20, 2022, order dismissing plaintiff's action annexed hereto at Exhibit E.
THE SEPTEMBER 20, 2022 DECISION / ORDER MUST BE VACATED SO
THAT PLAINTIFF MAY ENTER A DEFAULT JUDGMENT AGAINST
DEFENDANT TOLL VIOLATOR
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31. CPLR §5105(a)(1) is the principal default vacating provision in civil
practice. It allows a court to relieve a party from an order/judgment for excusable default.
It states as follows:
Rule §5105. Relief from judgment or order. (a) On motion. The court
which rendered a judgment or order may relieve a party from it upon
such terms as may be just, on motion of any interested person with such
notice as the court may direct, upon the ground of: 1. Excusable default,
if such motion is made within one year after service of a copy of the
judgment or order with written notice of its entry upon the moving
party, or, if the moving party has entered the judgment or order, within
one year after such entry... See CPLR §5105.
32. Additionally, CPLR §2005 gives the court the discretion to excuse delay or
failure"
default resulting from "law office when relief is sought pursuant to CPLR
(2nd
§5105(a)(1). See Pirnak v. Savino, 96 A.D.2d 857, 465 N.Y.S.2d 773 Dept. 1983).
The statute states as follows:
Rule § 2005. Excusable delay or default. Upon an application
satisfying the requirements of subdivision (d) of section 3012 or
subdivision (a) of rule 5015, the court shall not, as a matter of law, be
precluded from exercising its discretion in the interests of justice to
excuse delay or default resulting from law office failure. See CPLR
§2005.
33. The underlying principle of excusing delays and defaults based on law
office failure is that counsel's isolated neglect, or as is the case here, extenuating
circumstances preventing counsel from meeting his or her obligations, should not deprive
a party of his or her day in court in the absence of prejudice to the opponent. See Pollak v.
(4th
Eskander, 191 A.D.2D 1022, 1023, 594 N.Y.S.2d 510, 511 Dept. 1993); see also Jones
(3rd
v. R.S.R. Corp., 135 A.D.2d 900, 901, 521 N.Y.S.2d 892, 893 Dept. 1987).
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34. On the morning of September 20, 2022, Affirmant was scheduled to appear
for this matter while at the same time had eight in person maters scheduled in New York
County Civil Court located at 111 Centre Street, New York, New York.
35. Affirmant was unable to appear at the September 20, 2022 inquest hearing,
as affirmant did not have access to the firm's virtual calendaring system in order to retrieve
the link for the virtual appearance for the instant matter due to the Calendar access failing
to be granted to Affirmant's Outlook account.
36. There was a miscommunication within the Affirmant's law office in
providing access to the link to Affirmant that was not resolved until after the hearing time
6th
on September
37. As explained above, the failure of the Plaintiff to appear on September 20,
2022 was completely unintentional.
38. Nevertheless, the cases are legion in excusing defaults arising from "law
failure."
office See CPLR §2005; Uddaraju v. City of New York, 1 A.D.3d 140, 766
N.Y.S.2d 207 (granting motion to restore/vacate where case was dismissed for failure to
appear at preliminary conference and only excuse offered for default was that the case file
had been misplaced); McEvoy v. 1202 Realty Associates, N.Y. Sup. App. Term, 2002
(holding that motion to vacate/restore should be granted where party missed two
consecutive calendar calls and accepting law office failure as a reasonable excuse for their
non-appearance, citing Douglass v. Brew's Restaurant, 280 A.D.2d 345); Mediavilla v.
Gurman, 272 A.D.2d 146, 707 N.Y.S.2d 432 (granting motion to vacate/restore one year
after case was dismissed for non-appearance at a scheduled conference where only excuse
offered was that the non-appearance was due to inadvertent clerical error); see also Muriel
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v. St. Barnabas Hospital, 3 A.D.3d 419, 771 N.Y.S.2d 107; Werner v. Tiffany & Co., 291
A.D.2d 305, 738 N.Y.S.2d 32; Indrunas v. Escher Construction Corp., 277 A.D.2d 28, 716
N.Y.S.2d 10; Maurice v. Mahon, 269 A.D.2d 186, 702 N.Y.S.2d 808, citing Douglass v.
(1"
Brew's Restaurant, 720 N.Y.S.2d 478 Dept. 2001); Nunez v. Resource Warehousing
and Consolidation, 6 A.D.3d 325, 775 N.Y.S.2d 310; Negron v. New York City Housing
Authority, 2 Misc.3d 138(A), 2004 WL 829922; Muscarella v. Herbert Construction Co.,
Inc., 2 A.D.3d 112, 767 N.Y.S.2d 609; Burgos v. 2915 Surf Ave. Food Mart, Inc., 298
A.D.2d 282, 748 N.Y.S.2d 738; Palermo v. Lord & Taylor, Inc., 287 A.D.2d 258, 730
N.Y.S.2d 508; Rosenberg y. Maggio, M.D., 281 A.D.2d 183, 721 N.Y.S.2d 521; Goldmand
v. Cotter, 10 A.D. 3d 289, 781 N.Y.S.2d 28; Latha Restaurant Corp. v. Tower Insurance
(1"
Co., 285 A.D.2d 437, 728 N.Y.S.2d 45; Harwood v. Chaliha, 291 A.D.2d 234 Dept.
2001).
39. Additionally, even if this action were subject to the evidentiary showings of
CPLR §5105 or CPLR §2005, this matter would still meet the burdens established by those
sections.
40. Plaintiff has a reasonable excuse for its failure to attend the inquest hearing
on September 20, 2022 as affirmant did not have access to the firm's virtual calendar and,
as such, could not access the court-issued appearance link.
41. Furthermore, the Defendant in this action would not be prejudiced by the
restoration as the Defendant did not appear at the inquest conference scheduled on
September 20, 2022.
42. Defendant was given the opportunity to have their day in court and failed to
address the many toll violations that Plaintiff's evidence established.
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43. Furthermore, this Court granted plaintiff's motion to enter default
judgment. See court's decision granting judgment annexed hereto at EXHIBIT D.
44. As evidenced by plaintiff's VCD, Plaintiff seeks $7,507 for unpaid tolls and
$27,750 for unpaid administrative fees for a total of $35,257.
45. As such, plaintiff seeks a sum-certain amount in the amount of $35,257 and
referral to the inquest part ascertain damages is unnecessary.,
46. The restoration of this matter to the court's calendar serves only to provide
the parties with the opportunity to resolve the underlying matter.
CONCLUSION
CPLR §5105(a)(1) and CPLR §2005, CPLR §3404
Preview
FILED: NEW YORK COUNTY CLERK 09/20/2022 04:57 PM INDEX NO. 451061/2020 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 09/20/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ______________________________________________________Ç PORT AUTHORITY OF NEW YORK & NEW JERSEY, Index No.: 451061/2020 Plaintiff, - against - AFFIRMATION IN SUPPORT KAREN DUFFY, Defendant. _____________________________________Ç Derek Soltis an attorney admitted to practice before the Courts of this State affirms the truth of the following under the penalty of perjury: I am an associate of the Law Offices of Peter C. Merani, P.C., attorneys for the Plaintiff herein and as such I am fully familiar with the facts and circumstances of this action based upon a review of the case file and the investigation materials contained therein. BACKGROUND 1. The PORT AUTHORITY OF NEW YORK & NEW JERSEY, is a body corporate and politic created by Compact between the States of New York and New Jersey (154 Laws of N.Y., 1921; Ch. 151, Laws of N.J., 1921) with the consent of the Congress of the United States, and has a registered office at One Path Plaza, Jersey City, New Jersey 07306. 2. At all relevant times, the PORT AUTHORITY OF NEW YORK & NEW JERSEY, owned, operated, maintained and controlled certain premises known respectively as the George Washington Bridge, the Lincoln Tunnel, the Holland Tunnel, the Bayonne Bridge, the Outerbridge Crossing and the Goethals Bridge, which are all components of -4- 1 of 13 FILED: NEW YORK COUNTY CLERK 09/20/2022 04:57 PM INDEX NO. 451061/2020 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 09/20/2022 the PORT AUTHORITY OF NEW YORK & NEW JERSEY's Interstate Transportation Network. 3. No vehicular traffic is permitted to use the PORT AUTHORITY OF NEW YORK & NEW JERSEY's interstate bridges or tunnels except upon payment of such tolls and other charges as may be from time to time prescribed by the Port Authority. N.Y. Unconsolidated Laws §6802, N.J.S.A. 32:1-154.2. 4. THE PORT AUTHORITY OF NEW YORK & NEW JERSEY has set tolls for the use of its facilities and provided for their collection from motorists at its facilities. 5. Among the methods provided for the payment of tolls by motorists, is a method of electronic payment commonly known and referred to as E-ZPass®. 6. The owner of any motor vehicle required to pay a toll for the use of THE PORT AUTHORITY OF NEW YORK & NEW JERSEY's facilities is responsible for the timely payment of that toll. 7. The PORT AUTHORITY OF NEW YORK & NEW JERSEY's implementation and use of the E-ZPass® system is for the benefit of the general public and, when properly used, it allows the PORT AUTHORITY OF NEW YORK & NEW JERSEY to process a greater number oftoll transactions more expeditiously, thereby easing traffic congestion and shortening travel times for motorists using the PORT AUTHORITY OF NEW YORK & NEW JERSEY's bridges and tunnels. 8. The intentional and improper use of exclusive E-ZPass® lanes for purposes of evading the payment of tolls deprives the PORT AUTHORITY OF NEW YORK & NEW JERSEY of toll income to which it is entitled, improperly burdens the operation of its electronic toll collection system and diminishes efficiency and effectiveness of the PORT - 5 - 2 of 13 FILED: NEW YORK COUNTY CLERK 09/20/2022 04:57 PM INDEX NO. 451061/2020 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 09/20/2022 AUTHORITY OF NEW YORK & NEW JERSEY's investment in E-ZPass® as a means of reducing the substantial traffic congestion at its interstate bridges and tunnels and otherwise adversely affects and improperly interferes with the operation and maintenance of the Interstate Transportation Network. 9. Exclusive E-ZPass® lanes are clearly signed to inform motorists that the lanes are not for the use of those who would pay their tolls in cash. 10. Toll collectors are not assigned to staff the exclusive E-ZPass® lanes, where collection of tolls is exclusively made via the electronic E-ZPass® system. 11. The exclusive E-ZPass® lanes are provided for use of those who have made prior arrangements to pay the toll through the use of valid E-ZPass® equipment and have an agreement by which they agree to use their assigned E-ZPass® transponder device only when their E-ZPass® account is in good standing and when their account has sufficient funds needed to pay the tolls as and when charged. 12. While other staffed toll lanes are provided and are still available to both E- ZPass® and non-E-ZPass® patrons, E-ZPass® patrons using the exclusive E-ZPass® lanes are benefited by not being required to stop for a payment transaction with a toll collector. 13. Motorists who utilize the exclusive E-ZPass® lanes of the PORT AUTHORITY OF NEW YORK & NEW JERSEY's bridges and tunnels without E-ZPass® agreements and without the transponders actually needed to electronically pay the toll charges, and who do not otherwise pay the toll in cash at the time of crossing, are toll evaders. - 6 - 3 of 13 FILED: NEW YORK COUNTY CLERK 09/20/2022 04:57 PM INDEX NO. 451061/2020 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 09/20/2022 14. Toll evaders and E-ZPass® patrons who violate the terms of their agreements are responsible for the outstanding tolls plus an administrative fee, costs and attorney's fees for each improper use of E-ZPass® toll collection lanes. 15. Because highly visible signage provides notice to motorists that exclusive E-ZPass® lanes are not available for the payment of cash and motorists E- tolls, using ZPass® are not required to, and do not, stop to make cash payments of tolls, motorists using the PORT AUTHORITY OF NEW YORK & NEW JERSEY's facilities are fully aware of, and on notice of, the restricted nature of the exclusive E-ZPass® lanes because each lane is clearly marked. 16. Motorists using the PORT AUTHORITY OF NEW YORK & NEW JERSEY's facilities are charged with knowing and understanding the foregoing aspects of E-ZPass® and how it operates at THE PORT AUTHORITY OF NEW YORK & NEW JERSEY's facilities. 17. The PORT AUTHORITY OF NEW YORK & NEW JERSEY employs a toll collection system that identifies motorists exclusive E- monitoring improperly using ZPass® lanes wherein a toll due is not paid. 18. The owner of the vehicle identified as exclusive E- improperly using ZPass® lanes is provided with a written citation identifying the violation or violations with specificity, including the amount of toll due, the time and place of the violation and other details sufficient to identify the vehicle. 19. These citations are sent to the owner at the address provided on the offending vehicle's motor vehicle registration. -7- 4 of 13 FILED: NEW YORK COUNTY CLERK 09/20/2022 04:57 PM INDEX NO. 451061/2020 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 09/20/2022 20. Such citations provide the owner of the vehicle with notice that the vehicle has used the PORT AUTHORITY OF NEW YORK & NEW JERSEY's facilities without paying the requisite toll, as well as advising that use of exclusive E-ZPass® lanes is restricted to valid E-ZPass® account holders as set forth above. 21. This action was initiated by THE PORT AUTHORITY OF NEW YORK & NEW JERSEY against Karen Duffy to collect unpaid tolls and administrative fees associated with the unpaid tolls. 22. Defendant(s) traveled through the EZ Pass lane at various bridges and tunnels under the dominion and control of THE PORT AUTHORITY OF NEW YORK & NEW JERSEY without paying the toll on 558 occasions between 1/7/2013 and 2/22/2018. As a result, Defendant(s) owes PORT AUTHORITY OF NEW YORK & NEW JERSEY $7,507 for unpaid tolls and $27,750 for unpaid administrative fees for a total of $35,257. Report" 23. The Port Authority maintains a "Violations Citation Detail (hereafter "VCD report") in the regular course of its business. The VCD report contains all of the information for each toll violation and/or administrative fee, including: " The date of the violation " The exact time of the violation " The license plate number " The Plate State " The Plaza and ID Agency " The lane number that the violation occurred in " The citation number " The status of the violation " The citation level " The amount of the toll or administrative fee monetary " The amount paid " The balance due A copy of the VCD report is annexed hereto as EXHIBIT A. -8- 5 of 13 FILED: NEW YORK COUNTY CLERK 09/20/2022 04:57 PM INDEX NO. 451061/2020 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 09/20/2022 24. In the case at bar, Plaintiff served Defendant(s) with the Summons and Complaint on 3/19/2020. See attached Summons and Complaint with Affidavit of Service annexed at EXHIBIT B. 25. A second copy of the Summons and Complaint was mailed to the Defendant 6/1/2020. See attached Affirmation of Second Mailing annexed at EXHIBIT C. 26. Defendant did not respond to said second mailing. 27. On September 16, 2020, plaintiff filed a motion to enter default judgment against defendant.See plaintiff's previous motion to enter default judgment annexed hereto as Exhibit D. 28. On April 21, 2021, this Court granted plaintiff's motion to enter default judgment against defendant and that damages are to be determined via an inquest hearing. See court order granting judgment also annexed hereto at EXHIBIT D. 29. Plaintiff learned that the matter was adjourned to September 20, 2022. However, plaintiff's appearing attorney did not have access to the virtual court calendar appearance link. 30. On September 20, 2022, this Court dismissed plaintiff's case as plaintiff failed to appear at the Court's judgment against defendant. See Judge Arlene P. Bluth's September 20, 2022, order dismissing plaintiff's action annexed hereto at Exhibit E. THE SEPTEMBER 20, 2022 DECISION / ORDER MUST BE VACATED SO THAT PLAINTIFF MAY ENTER A DEFAULT JUDGMENT AGAINST DEFENDANT TOLL VIOLATOR -9- 6 of 13 FILED: NEW YORK COUNTY CLERK 09/20/2022 04:57 PM INDEX NO. 451061/2020 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 09/20/2022 31. CPLR §5105(a)(1) is the principal default vacating provision in civil practice. It allows a court to relieve a party from an order/judgment for excusable default. It states as follows: Rule §5105. Relief from judgment or order. (a) On motion. The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of: 1. Excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry... See CPLR §5105. 32. Additionally, CPLR §2005 gives the court the discretion to excuse delay or failure" default resulting from "law office when relief is sought pursuant to CPLR (2nd §5105(a)(1). See Pirnak v. Savino, 96 A.D.2d 857, 465 N.Y.S.2d 773 Dept. 1983). The statute states as follows: Rule § 2005. Excusable delay or default. Upon an application satisfying the requirements of subdivision (d) of section 3012 or subdivision (a) of rule 5015, the court shall not, as a matter of law, be precluded from exercising its discretion in the interests of justice to excuse delay or default resulting from law office failure. See CPLR §2005. 33. The underlying principle of excusing delays and defaults based on law office failure is that counsel's isolated neglect, or as is the case here, extenuating circumstances preventing counsel from meeting his or her obligations, should not deprive a party of his or her day in court in the absence of prejudice to the opponent. See Pollak v. (4th Eskander, 191 A.D.2D 1022, 1023, 594 N.Y.S.2d 510, 511 Dept. 1993); see also Jones (3rd v. R.S.R. Corp., 135 A.D.2d 900, 901, 521 N.Y.S.2d 892, 893 Dept. 1987). - 10 - 7 of 13 FILED: NEW YORK COUNTY CLERK 09/20/2022 04:57 PM INDEX NO. 451061/2020 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 09/20/2022 34. On the morning of September 20, 2022, Affirmant was scheduled to appear for this matter while at the same time had eight in person maters scheduled in New York County Civil Court located at 111 Centre Street, New York, New York. 35. Affirmant was unable to appear at the September 20, 2022 inquest hearing, as affirmant did not have access to the firm's virtual calendaring system in order to retrieve the link for the virtual appearance for the instant matter due to the Calendar access failing to be granted to Affirmant's Outlook account. 36. There was a miscommunication within the Affirmant's law office in providing access to the link to Affirmant that was not resolved until after the hearing time 6th on September 37. As explained above, the failure of the Plaintiff to appear on September 20, 2022 was completely unintentional. 38. Nevertheless, the cases are legion in excusing defaults arising from "law failure." office See CPLR §2005; Uddaraju v. City of New York, 1 A.D.3d 140, 766 N.Y.S.2d 207 (granting motion to restore/vacate where case was dismissed for failure to appear at preliminary conference and only excuse offered for default was that the case file had been misplaced); McEvoy v. 1202 Realty Associates, N.Y. Sup. App. Term, 2002 (holding that motion to vacate/restore should be granted where party missed two consecutive calendar calls and accepting law office failure as a reasonable excuse for their non-appearance, citing Douglass v. Brew's Restaurant, 280 A.D.2d 345); Mediavilla v. Gurman, 272 A.D.2d 146, 707 N.Y.S.2d 432 (granting motion to vacate/restore one year after case was dismissed for non-appearance at a scheduled conference where only excuse offered was that the non-appearance was due to inadvertent clerical error); see also Muriel -11- 8 of 13 FILED: NEW YORK COUNTY CLERK 09/20/2022 04:57 PM INDEX NO. 451061/2020 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 09/20/2022 v. St. Barnabas Hospital, 3 A.D.3d 419, 771 N.Y.S.2d 107; Werner v. Tiffany & Co., 291 A.D.2d 305, 738 N.Y.S.2d 32; Indrunas v. Escher Construction Corp., 277 A.D.2d 28, 716 N.Y.S.2d 10; Maurice v. Mahon, 269 A.D.2d 186, 702 N.Y.S.2d 808, citing Douglass v. (1" Brew's Restaurant, 720 N.Y.S.2d 478 Dept. 2001); Nunez v. Resource Warehousing and Consolidation, 6 A.D.3d 325, 775 N.Y.S.2d 310; Negron v. New York City Housing Authority, 2 Misc.3d 138(A), 2004 WL 829922; Muscarella v. Herbert Construction Co., Inc., 2 A.D.3d 112, 767 N.Y.S.2d 609; Burgos v. 2915 Surf Ave. Food Mart, Inc., 298 A.D.2d 282, 748 N.Y.S.2d 738; Palermo v. Lord & Taylor, Inc., 287 A.D.2d 258, 730 N.Y.S.2d 508; Rosenberg y. Maggio, M.D., 281 A.D.2d 183, 721 N.Y.S.2d 521; Goldmand v. Cotter, 10 A.D. 3d 289, 781 N.Y.S.2d 28; Latha Restaurant Corp. v. Tower Insurance (1" Co., 285 A.D.2d 437, 728 N.Y.S.2d 45; Harwood v. Chaliha, 291 A.D.2d 234 Dept. 2001). 39. Additionally, even if this action were subject to the evidentiary showings of CPLR §5105 or CPLR §2005, this matter would still meet the burdens established by those sections. 40. Plaintiff has a reasonable excuse for its failure to attend the inquest hearing on September 20, 2022 as affirmant did not have access to the firm's virtual calendar and, as such, could not access the court-issued appearance link. 41. Furthermore, the Defendant in this action would not be prejudiced by the restoration as the Defendant did not appear at the inquest conference scheduled on September 20, 2022. 42. Defendant was given the opportunity to have their day in court and failed to address the many toll violations that Plaintiff's evidence established. -12- 9 of 13 FILED: NEW YORK COUNTY CLERK 09/20/2022 04:57 PM INDEX NO. 451061/2020 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 09/20/2022 43. Furthermore, this Court granted plaintiff's motion to enter default judgment. See court's decision granting judgment annexed hereto at EXHIBIT D. 44. As evidenced by plaintiff's VCD, Plaintiff seeks $7,507 for unpaid tolls and $27,750 for unpaid administrative fees for a total of $35,257. 45. As such, plaintiff seeks a sum-certain amount in the amount of $35,257 and referral to the inquest part ascertain damages is unnecessary., 46. The restoration of this matter to the court's calendar serves only to provide the parties with the opportunity to resolve the underlying matter. CONCLUSION CPLR §5105(a)(1) and CPLR §2005, CPLR §3404