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Mohammed v. Great Atlantic & Pacific Tea Co., Inc.

Supreme Court of New York, New York County

September 23, 2013

Solomon MOHAMMED, Plaintiff,
v.
The GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., The Food Emporium and Dan Wodzenski, Defendant. No. 115608/10.

Editorial Note:

This decision has been referenced in a table in the New York Supplement.

Mark L. Lubelsky, Esq., New York, NY, for Plaintiff.

Douglas P. Catalano, Esq., Neil G. Sparber, Esq., Fulbright & Jaworsky, LLP, New York, NY, for Defendant.

LOUIS B. YORK, J.

In this action in which plaintiff sues for discrimination and termination in violation of the city and state Human Rights Laws, plaintiff moves for a default judgment against one of the defendants while that defendant cross-moves to dismiss.

At the outset, the Court informs the parties that it did not consider cross-movant's Reply Memorandum of Law as no authorization for one was sought from the Court and no provision for it is contained in the CPLR or the Court's rules.

Background

This suit was originally brought against the Great Atlantic & Pacific Tea Company (" A & P" ), The Food Emporium, a subsidiary of the A & P and Dan Wodzenski. Plaintiff claims he was employed by both.

Defendant Wodzenski, the party against whom this motion for a default is being brought, became the district manager for The Food Emporium, with the responsibility for hiring the store managers and in charge of sales and operations for all 16 stores in Manhattan. At that time, the plaintiff was the co-manager for one of the stores and under the supervision of the manager for that store. He claims that Wodzenski made the decision to fire him and sent him the Notice of Termination and subsequently personally informed him that he was fired. Before that, plaintiff asserts that Wodzenski denied his request for a promotion and hired someone with less qualifications for that position. Plaintiff then brought this lawsuit against the two corporate defendants and Wodzenski, alleging discrimination on the grounds of race, age, national origin, religion and outrageous conduct causing severe emotional distress.

Emphatically denying any desire to abandon a defense to the action, Wodzenski has no recollection of having been served, although he does not deny outright that he received the Summons and Complaint. He alleges that when he receives legal papers he always sends them to the Office of Human Relations to take care of it as he is not familiar with legal matters. Even if he was served, Wodzenski would not have understood that he was being sued. That is an important point because the plaintiff waited for more than two years before attempting to enter a default against Wodzenski. That is because a Bankruptcy Chapter 11 proceeding was instituted for the two corporate defendants and plaintiff's lawyer mistakenly believed that the automatic stay also applied to the corporate defendant's employee.

Defendant's Argument

The defendant, Wodzenski claims that the plaintiff had one year from defendant's failure to answer to seek a default judgment and his failure to do so amounts to an abandonment of the action. Therefore, plaintiff's failure to do so for more than two years should result, not in entry of a default, but dismissal of the action, or failing that, an enlargement of the defendant's time to interpose an Answer.

Plaintiff's Argument

Plaintiff concedes that it was a mistake to wait for the conclusion of the bankruptcy proceeding before he sought to enter the default. The automatic stay did not apply to Wodzenski since he was not brought into the bankruptcy as a debtor. Plaintiff claims it was an honest and reasonable mistake, rather than any ...


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