Motion for Stipulated Judgment in The Port Authority Of New York & New Jersey v. Carlos Aramayo, John Doe 1-100| Trellis.Law

On September 22, 2016 a Motion-Secondary was filed involving a dispute between The Port Authority Of New York & New Jersey, and Carlos Aramayo, John Doe 1-100, for Commercial - Other (TOLL VIOLATION) in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 03/27/2018 01:26 PM INDEX NO. 451769/2016
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 04/13/2018

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
â€â€â€â€â€â€â€â€
_________________________________..___________________..........------X

PORT AUTHORITY OF NEW YORK AND NEW
JERSEY, AFFIRMATION IN
SUPPORT

Plaintiff '
Index No.: 0451769/2016
- against -

CARLOS ARAMAYO,

Defendant.

-----------------------------------------------------X

Michael Zeleznock, an attorney admitted to practice before the Courts of thisState affirms the

truth of the following under the penalty of peijury:

I am a partner of Peter C. Merani, P.C., attorneys for the Plaintiff(s) 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.

Your affinnant, fully familiar with the facts and circumstances surrounding the within

issues, submits this affirmation in support of the within application:

BACKGROUND

This action was commenced on September 22, 2016 with the filing of a Summons and

Complaint seeking to recover $60,167.00 from defendant for unpaid tolls, violations and late

fees. Plaintiff completed service of the Summons and Complaint upon Defendant Carlos

Aramayo on December 16, 2016. On March 17, 2017, Plaintiff effectuated a second mailing

of the Summons and Complaint pursuant to CPLR §3215(g)(3) as the Defendant failed to

make an appearance or file an Answer in response to the Summons and Complaint. The

Summons and Complaint as well as the CPLR §3215(g)(3) second mailing are annexed hereto

"A."
as Exhibit

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Due to the Defendant's failure to filean Answer or make an appearance in thismatter,

Plaintiff filed a Motion to Enter a Default Judgment on July 18, 2017 with a return date of

August 22, 2017. Plaintiff's Motion to Enter a Default Judgment was granted on September

13, 2017 by the Honorable Robert D. Kalish. The Order/Decision of the Honorable Robert

"B."
D. Kalish is annexed hereto as Exhibit

On January 22, 2018, Plaintiff was notified that a trial inquest was scheduled in this

matter for January 24, 2018 at 10:00 a.m. Neither the Plaintiff nor the Defendant appeared in

this matter and this matter was dismissed from the court's calendar by the Hon. Carol Ruth

Feinman due to said non-appearance.

The failure of Plaintiff to appear for the January 24, 2018 trialinquest was completely

unintentional and inadvertent. The handling attorney for Plaintiff was not made aware of the

add-on trialinquest and had appearances at the Supreme Court of the State ofNew York, New

York County at 60 Centre Street, New York, NY on January 24, 2018. The non-appearance

at the trial inquest was unintentional.

As such, it is respectfully requested that this Court enter an Order, (i)pursuant to

CPLR §3404, CPLR §2005 and CPLR 5105(a)(1), vacating this Court's Decision/Order,

dated January 29, 2018, dismissing the matter due to Plaintiff's non-appearance at the I.A.S.

Part 28 trialinquest on January 24, 2018; (ii)restoring this action to the Court's I.A.S. Part 28

trial calendar pursuant to CPLR §3404, CPLR §2005 and CPLR 5105(a)(1); and for such

other and further relief as this Court deems just and proper.

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THE JANUARY 29, 2018 DECISION/ORDER SHOULD BE VACATED SO
THAT PLAINTIFF MAY ENTER A DEFAULT JUDGMENT AGAINST
DEFENDANT TOLL VIOLATOR

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 itupon 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, ifsuch 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, ifthe moving party has entered

the judgment or order, within one year after such entry... See CPLR §5105.

Additionally, CPLR §2005 gives the court the discretion to excuse delay or default

failure"
resulting from "law office when reliefis sought pursuant to CPLR §5105(a)(1). See

(2nd
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) ofrule 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.

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. Eskander,_191 A.D.2D 1022,

(4"'
1023, 594 N.Y.S.2d 510, 511 Dept. 1993); see also Jones v. R.S.R. Corp., 135 A.D.2d

(3"1
900, 901, 521 N.Y.S.2d 892, 893 Dept. 1987).

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As explained above, the failure of the Plaintiff to appear on January 24, 2018 was

completely unintentional and inadvertent. Affirmant's office would have timely appeared for

the calendar call ifnot for the simultaneous appearances for which the handling attorney was

scheduled and the late addition of the case to our firm's calendar.

Nevertheless, the cases are legion in excusing defaults arising from "law office

failure."
See CPLR §2005; Uddaraju v. City ofNew 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. Tenn, 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 excuse offered was that the non-
only

appearance was due to inadvertent clerical error); see also Muriel 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. Brew's Restaurant, 720 N.Y.S.2d 478

(l't
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 v. Maggio, M.D., 281

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A.D.2d 183, 721 N.Y.S.2d 521; Goldmandv. Cotter, 10 A.D. 3d 289, 781 N.Y.S.2d 28;Latha

Restaurant Corp. v. Tower insurance Co., 285 A.D.2d 437, 728 N.Y.S.2d 45; Harwood v.

(1't
Chaliha, 291 A.D.2d 234 Dept. 2001).

"OFF"
AS THIS MATTER WAS MARKED THE TRIAL CALENDAR RATHER
THAN DISMISSED OUTRIGHT AND THE TRIAL INQUEST ITSELF WAS NOT
NECESSARY TO ENTER PLAINTIFF'S DEFAULT JUDGMENT, LAW AND
EQUITY FAVOR ITS RESTORATION

"off"
When a case in New York State Supreme Court is marked the trial calendar and

the restoration of that case to the trialcalendar is requested within one year pursuant to CPLR

§3404, the party requesting restoration need not make the evidentiary showing required by

CPLR §5105.

CPLR §3404 provides that,

"off"
A case in the supreme court or county court marked or struck from the
calendar or unanswered on a clerk's calendar call,and not restored within one
year thereafter, shall be deemed abandoned and shall be dismissed without
costs for neglect to prosecute...see CPLR §3404.

In Basetti v. Nour, 287 A.D.2d 126, 731 N.Y.S.2d 35, 2001 N.Y. Slip Op.

0761 8, the Appellate Division, Second Department analyzed the options available to

a trialcourt when a case is called for trialand one or more of the parties fails to appear.

"off"
The Court found that when a case is merely marked the trialcalendar pursuant

to CPLR §3404 rather than dismissed outright, a trial court analyzing a motion to

"off"
restore need only focus upon the action taken by the court in marking the case

rather than attempting to determine the reason for the action. Id. at 133. Per the Court:

"off"
If the court chooses to mark the case or strike itfrom the trial calendar
pursuant to CPLR 3404 then the court has given the dilatory party one year
within which to restore the action without any obstacles to hurdle, but the
specter of automatic dismissal and its attendant difficulties in restoration, i.e.,
proof necessary to vacate a default, takes effect after one year. Basettiv. Nour,
287 A.D.2d at 134 (emphasis added).

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In making itsholding in Basetti, the Second Department found that since the

"off"
lower court exercised itsdiscretion in marking the matter "off trialrather than dismiss

the action outright, the plaintiffs need only request a restoration without demonstrating

a reasonable excuse, meritorious action, lack of intent to abandon, lack of prejudice to

the defendants, or some lesser burden. Id. at 136. In Johnson v. Rivera, 10 A.D.3d

288, 781 N.Y.S.2d 22, 2004 N.Y. Slip Op. 0634, the Appellate Division, First

Department cited to Basetti in holding that a plaintiff need only request restoration

within one year pursuant to CPLR §3404, "without any obstacles to hurdle.."Johnson

v. Rivera, 10 A.D.3d at 289.

Additionally, even if this action were subject to the evidentiary showings of

CPLR §5105 or CPLR §2005, thismatter would stillmeet the burdens established by

those sections. As argued above, Plaintiff has a reasonable excuse for itsfailure to

attend the calendar callon January 24, 2018. Furthermore, the Defendant in this action

would not be prejudiced by the restoration as the Defendant has not appeared in this

action at any stage of the litigation. The trial inquest on January 24, 2018 was

scheduled to determine the monetary judgment for which the Plaintiff was already

granted leave to enter by the Honorable Robert D. Kalish. Defendant was given the

opportunity to have his day in court and failed to address the many tollviolations that

Plaintiff's evidence established. The restoration of this matter to the court's trial

calendar serves only to verify the amount of the judgment Plaintiff has already been

given leave to enter.

Any prejudice to the Defendant is further diminished by the factthat the matter

itself should not have been referred for a trialinquest at all. Plaintiff's Verified

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"A,"
Complaint, annexed hereto at Exhibit establishes that Plaintiff's claim is for a

sum certain in the amount of $60,l 67.00 in unpaid tolls and administrative fees.

CPLR§ 3125 (a), in pertinent part, permits that when a plaintiffs claim is for a sum

certain or for a sum which can by computation be made certain, application may be

made to the clerk within one year after the default. The clerk, upon submission of the

requisite proof, shall enter judgment for the amount demanded in the complaint. See

CPLR§ 3125. A plaintiff need only apply to the court for judgment when the case is

not one in which the clerk can enter judgment based upon a sum certain. Id. The

Defendant cannot be prejudiced by the restoration of a proceeding to determine the

amount owed to the Plaintiff when such a proceeding was not actually necessary to

determine that amount.

CONCLUSION

CPLR §5105(a)(1) and CPLR §2005, CPLR §3404 and the case law interpreting those

statutes, all support vacatur of the subject order so that this action may proceed and Plaintiff

may enter the default judgment itwas granted leave to enter. As the courts of this State have

acknowledged, the isolated neglect of counsel should not deprive a party of his or her day in

court. In the instant case, Defendant has forgone his day in court by failing to appear at any

stage in this action. Plaintiff's inadvertent failure to appear for the trial inquest on January

24, 2018 should not deprive Plaintiff from proceeding with the entry of itsdefault judgment.

Plaintiff's judgment is for a sum certain, as established in itsVerified Complaint, and the trial

inquest itself was not necessary to enter such a judgment. The courts of this State permit

vacatur of defaults caused by law office failure as well as permit the obstacle-free restoration

"off"
of matters marked from the trialcalendar within one year of such a marking. As the

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Defendant will not suffer any prejudice and the courts of this State favor the restoration of

"off"
matters marked or dismissed due to inadvertent law office failure, this matter should be

restored and proceed to its conclusion. Conversely, if the Default Decision/Order is not

vacated, Plaintiff itselfwill be prejudiced and penalized for inadvertently missing the calendar

call for a trial that should not have been scheduled in the firstplace.

Itis respectfully requested thatthe court vacate the calendar marking of the Hon. Carol

Ruth Feinman which dismissed plaintiff's case and restore this action to the trialcalendar.

A previous application for the relief sought herein has not been previously submitted

to this or any other Court.

WHEREFORE, PLAINTIFF(s) respectfully request(s) the within motion be granted

in allrespects and thatthis Court grant such other and further relief as itdeems just and proper.

Dated: New York, NY
Friday, March 02, 2018

ichael Zeleznock, Esq.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-------------------------------------X
PORT AUTHORITY OF NEW YORK AND NEW
JERSEY, AFFIRMATION OF
EMERGENCY

Plaintiff,
Index No.: 0451769/2016
- against -

CARLOS ARAMAYO,

Defendant.

----------------------------------X

STATE OF NEW YORK :
ss.:
COUNTY OF New York:

Michael Zeleznock, an attorney duly admitted to practice law in the State of New York

affirms the truth of the following under penalty of perjury:

This order to show cause is an emergency. The underlying action has been dismissed and
Plaintiff cannot seek to enforce a meritorious claim for the violations incurred by the defendant. This
matter must be restored to this Court's calendar so that this action may proceed to itsconclusion.

Dated: NEW YORK, NY
April 13, 2018

Michael Zeleznock, Esq.

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Case Info

Judge

Carolruth Feinman Track Judge’s New Case

Case No.

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Document Filed Date

April 13, 2018

Case Filing Date

September 22, 2016

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Motion-Secondary: The Port Authority Of New York & New Jersey v. Carlos Aramayo, John Doe 1-100

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