PORT AUTHORITY OF NEW YORK NEW JERSEY v. AMIGO TRANSIT LLC (2022)

In this action to collect unpaid tolls, plaintiff, the Port Authority of New York & New Jersey, moves without opposition for default judgment under CPLR 3215. The motion is denied and the action is dismissed.

To obtain default judgment, a plaintiff must establish proper service; the defendant's default; and the facts constituting the plaintiff's claim, either through a properly verified complaint or an affidavit on personal knowledge. (CPLR 3215 [f].) Plaintiff must, on pain of dismissal, take proceedings for the entry of default judgment within one year of the defendant's default. (CPLR 3215 [c].) Plaintiff here satisfies neither requirement.

Plaintiff commenced this action in January 2020 (NYSCEF No. 1), served defendant in February 2020 and April 2020 (NYSCEF Nos. 4-6), and filed its corresponding affidavits of service in February 2020 and May 2020, respectively (see id.). Thus, at the very latest, defendant's deadline to respond fell in July 2020. Defendant did not respond, putting it in default. But plaintiff did not move for default judgment until April 2022, nearly two years later. (See NYSCEF No. 7 [notice of motion].) This court is therefore required under CPLR 3215 (c) to dismiss the action as abandoned unless “sufficient cause is shown” why the action should be permitted to continue. But plaintiff does not even acknowledge the untimeliness of its motion, much less provide the satisfactory justification required to avert dismissal. (See generally NYSCEF No. 8 [attorney affirmation in support of motion].)

Even if the motion were timely, plaintiff has not satisfactorily established the facts constituting its claim, as CPLR 3215 (f) requires. Plaintiff relies on a verified complaint and documentary evidence attached to its motion papers. (See NYSCEF No. 1 [complaint]; NYSCEF No. 9 [unpaid tolls ledger].) But the facts stated in these two documents do not agree. The complaint alleges in several places that defendant failed to pay required tolls on 731 occasions. (See e.g. NYSCEF No. 1 at ¶ 24.) The list of violations provided by plaintiff in its motion papers states that defendant failed to pay required tolls on 824 occasions over the same period described in the complaint.¹ (See NYSCEF No. 9 at 47.) The complaint alleges that plaintiff is entitled to collect $54,668 in unpaid tolls and corresponding fees (NYSCEF No. 1 at ¶ 28); but the violations list states instead that defendant owes $56,916 (see NYSCEF No. 9 at 47)—a difference that cannot be accounted for merely by the differing number of violations given in the two documents.

Moreover, neither violations figure can accurately represent the number of unpaid-toll violations (and fees) for which defendant could be held liable in this action, because each figure does not account for the governing statute of limitations.

Plaintiff's action is predicated on defendant's having violated Unconsolidated Laws § 6802. That statute requires payment of all tolls set by plaintiff on its vehicular crossings, and makes it unlawful to evade those tolls. Unconsolidated Laws §§ 6816-a, 6816-b, and 6816-c impose liability (and set monetary penalties) for violations of § 6802.

Surprisingly, this court's research has found no case, in any court, addressing the appropriate limitations period for actions to collect on unpaid Port Authority tolls. It seems clear, though, that the liability (and accompanying penalties) for failing to pay these tolls is one imposed by statute. The limitations period for an action to collect unpaid tolls is therefore three years. (See CPLR 214 [2].) The complaint in this case was filed on January 23, 2020. (See NYSCEF No. 1.) Any unpaid-toll violation committed prior to January 23, 2017, is time-barred. By this court's count, that would exclude 101 of the 824 violations appearing on the violations list, leaving 723—or still fewer if one goes by the 731-violations figure in the complaint.

In short, the action must be dismissed for failure to seek default judgment within one year of defendant's default. And the default-judgment motion would have to be denied in any event because material discrepancies exist within plaintiff's proof—discrepancies exacerbated by the untimeliness of a significant portion of plaintiff's claim—leaving it impossible to tell how much defendant truly owes.

Accordingly, it is

ORDERED that plaintiff's motion for default judgment under CPLR 3215 is denied, and the action is dismissed as abandoned under CPLR 3215 (c); 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, mailed to defendant's last-known address; and on the office of the County Clerk, which shall enter judgment accordingly.

FOOTNOTES

1.   This discrepancy exists notwithstanding the complaint's giving the same account number for defendant's allegedly unpaid tolls that appears on the violations list. (Compare NYSCEF No. 1 at ¶ 30, with NYSCEF No. 9 at 1.)

Gerald Lebovits, J.