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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,
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.


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.


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 intention to abandon the action. Therefore, entry of a default judgment should be allowed.


Under the facts of this case, the Court will not enter the default. Even though the pleading, if accurate on the facts, pleads a valid cause of action.

CPLR 3215(c) prohibits the entry of a default judgment if the plaintiff does not do so within one year of the default, unless sufficient cause is given explaining why the Complaint should not be dismissed. To make a determination, case law has set forth three factors. The first is whether the Complaint is meritorious. The others are whether the plaintiff intended to abandon the action and whether the defendant suffered any prejudice because of the delay ( Brooks v. Somerset, 106 A.D.3d 624, 966 N.Y.S.2d 65 [1st Dept 2013]; Corbin v. Wood Pro., 184 A.D.2d 234, 586 N.Y.S.2d 746 [1st Dept 1992] ). The Court finds that the facts herein show there was no intent to abandon the action and plaintiffs mistake in interpreting the effect of the stay was reasonable.

The complaint on its face shows that plaintiff has pleaded valid causes of action. Nevertheless, the delay caused severe prejudice to the defendant, who has contradicted the pertinent factual allegations of the Complaint. His affidavit states that no request of him nor denial by him of a promotion was made. He did not supervise the plaintiff, the store manager did. The decision to fire him was made by the director of Human Resources, not defendant, because of his low evaluations and was part of a system-wide decision made by the company. If plaintiff had followed up in a timely manner with the action after defendant's default, defendant's assertion of a meritorious defense and the public policy in this jurisdiction of giving each litigant his day in court would have given the defendant an opportunity to serve his Answer with much less delay. See, Bernstein v. Wysoki, 77 A.D.3d 241, 907 N.Y.S.2d 49 [2d Dept 2010]; Goldstein v. Consolidated Edison, 93 A.D.2d 589 [1st Dept 1983], affd 62 N.Y.2d 936 [1984].

Dismissal of the Complaint

Since the Court has denied the plaintiff a default judgment, it needs to either dismiss the Complaint or, alternatively permit the defendant to interpose an Answer. The Courts have generally allowed a late Answer where there is a valid excuse for not answering on time and have asserted a meritorious defense ( Heskel's West 38th St. v. Gotham Construction, 14 A.D.2d 306, 787, N.Y.S.2d 285 [1st Dept 2005] ). The Court will accept defendant's explanation as to his confusion about being served, exacerbated by plaintiff's delay in entering a default judgment, together with the public policy devoted to giving litigants their day in court. The Court gives the defendant 20 days for the service of its Answer. Plaintiff is accorded the 20 days to Reply.

Accordingly, it is

ORDERED that plaintiff's motion for default judgment against defendant Wodzenski is denied; and it is further

ORDERED that defendant Wodzenski's cross-motion is granted but only to the extent of granting defendant twenty (20) days from the service of this Order to answer the Complaint, and the plaintiff has twenty (20) days to Reply.

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