Preview
FILED: BRONX COUNTY CLERK 10/07/2020 06:20 PM INDEX NO. 26901/2020E
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/07/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
O. BENJAMIN OKPESEYI, Index No. 26901/2020E
Plaintiff,
-against-
MONTEFIORE MEDICAL CENTER,
Defendant.
MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF’S
MOTION FOR DEFAULT JUDGMENT AGAINST DEFENDANT
LITTLER MENDELSON, P.C.
900 Third Avenue
New York, NY 10022.3298
Attorneys for Defendant
Montefiore Medical Center
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TABLE OF CONTENTS
PAGE
I. PRELIMINARY STATEMENT ........................................................................... 1
II. STATEMENT OF PERTINENT FACTS ............................................................. 1
A. Plaintiff’s Employment .............................................................................. 1
B. Procedural History ..................................................................................... 2
III. ARGUMENT ......................................................................................................... 4
A. The Court Should Deny Plaintiff’s Motion for Default Judgment ............ 4
IV. CONCLUSION ...................................................................................................... 6
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TABLE OF AUTHORITIES
PAGE(S)
Cases
Brokaw v. Cohen,
117 Misc.2d 31, 457 N.Y.S.2d 168 (N.Y. Sup. Ct., N.Y. Cty. 1982)....................................4, 6
Matter of Gibson,
45 A.D.2d 678 (1st Dep’t 1974) ................................................................................................6
Guzetti v. City of N.Y.,
32 A.D.3d 234 (1st Dep’t 2006) ................................................................................................4
Price v. Polisner,
172 A.D.2d 422 (1st Dep’t 1990) ..............................................................................................5
Resnick v. Lebovitz,
28 A.D.3d 533 (2d Dep’t 2006) .................................................................................................4
Sanford v. 27-29 W. 181st Street Ass’n, Inc.,
300 A.D.2d 250 (1st Dep’t 2002) ..............................................................................................5
Other Authorities
CPLR 3215.......................................................................................................................................4
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Defendant Montefiore Medical Center (hereinafter, “Defendant” or “Montefiore”)
submits this memorandum of law in opposition to Plaintiff’s Motion for Default Judgment
Against Defendant (hereinafter, the “Motion”).
I. PRELIMINARY STATEMENT
This case arises from Plaintiff O. Benjamin Okpeseyi’s (“Plaintiff”) employment by
Montefiore from August 22, 2013 until his termination on or about June 15, 2019. Plaintiff
complains that during his employment he was discriminated against because of his race and/or
national origin, and retaliated against by Montefiore. Plaintiff asserts claims pursuant to the New
York State Human Rights Law, N.Y. Exec. Law §§ 290 et seq. and the New York City Human
Rights Law, N.Y. City Admin. Code §§ 8-107.
Plaintiff initiated this action by filing a Verified Complaint in Bronx County on July 6,
2020. Defendant twice requested and obtained from Plaintiff an extension of time to respond to
the Verified Complaint. Due to unintentional law office failure, Defendant did not timely file the
Answer. Plaintiff filed the Motion on Friday, September 11, 2020.
Plaintiff’s Motion should be denied because: (i) he has not shown that he has a
meritorious case or that he has been prejudiced by the brief delay in Defendant’s filing the
Answer; (ii) Defendant successfully defeated Plaintiff’s claims at the administrative agency
level; and (iii) Defendant’s failure to timely file the Answer was the result of an inadvertent
mistake.
II. STATEMENT OF PERTINENT FACTS
A. Plaintiff’s Employment
Montefiore Medical Center is one of the nation’s premier teaching hospitals. In addition
to in-patient care, Montefiore serves the Bronx community through several out-patient programs,
including Montefiore Home Care (“MHC”). MHC was created to allow newly-discharged
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patients the benefits of individually-tailored, at-home recuperation and recovery services.
Plaintiff was hired by MHC in August 2013 as Patient Services Coordinator, responsible for
providing administrative and clinical support to ten Registered Nurses. Affirmation of Nina
Massen, dated October 7, 2020 (hereinafter, “Massen Aff.”), ⁋ 3. Plaintiff was promoted on May
16, 2016 to Director of Patient Services. Id.
In 2017, Montefiore hired an outside agency, Simione, to do a top-to-bottom review of
MHC and make recommendations for improvement. Id. at ⁋ 3. Simione concluded, inter alia,
that Plaintiff’s position should be eliminated as part of a larger organizational restructuring. Id.
Plaintiff’s employment was terminated on June 15, 2019 in accordance with this strategic plan.
Id. at ⁋ 3.
B. Procedural History
Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity
Commission (hereinafter, the “EEOC”) alleging that the terms and conditions of his employment
were discriminatory and his termination was retaliatory. Massen Aff., ¶ 4, Ex. A. Following its
investigation, including consideration of the Position Statement submitted by Defendant, the
EEOC determined that there was no violation of the law by Defendant, and issued a Notice of
Right to Sue on March 6, 2020. Id. at Ex. B.
On July 6, 2020, Plaintiff filed a Verified Complaint in this Court. Plaintiff asserts
employment discrimination claims that are virtually identical to the allegations in Plaintiff’s
EEOC Charge of Discrimination. Massen Aff., ¶ 5, Exs. A, C. Defendant was properly served
with a Summons and Complaint. Massen Aff., ¶ 6.
Due to an internal mail processing delay at Montefiore, Defendant’s counsel did not
receive a copy of the Summons and Verified Complaint until August 13, 2020, and then
immediately called Plaintiff’s counsel to request an extension of the deadline to respond to the
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Verified Complaint. Massen Aff., ¶¶ 6-7. Defendant’s counsel sought an extension until
September 18, 2020, one week after her return from a scheduled vacation. Plaintiff’s counsel
granted an extension only until August 31, 2020. Massen Aff., ¶ 7. On August 26, 2020,
Defendant’s counsel requested an additional two days’ extension until September 2, 2020, which
was also granted. Massen Aff., ¶ 8, Ex. D.
The Answer was ready for filing by the September 2, 2020 deadline, but due to
miscommunication was not filed. Massen Aff., ¶ 9.
Plaintiff’s counsel emailed Defendant’s counsel during her vacation to advise her that the
Answer had not been filed. Defendant’s counsel responded that she could not remedy the
situation directly while she was on vacation, but would ask a colleague (Jean Schmidt, Esq.),
who appeared in the case, to address the matter. Massen Aff., ¶ 10, Ex. E.
Defendant’s counsel forwarded Mr. Mosaku’s email from her business smartphone to her
gmail account to be able to type more easily from her laptop. She typed an email to Ms. Schmidt
asking her to file the Answer, but inadvertently forwarded that message to herself instead of Ms.
Schmidt. Massen Aff., ¶ 10, Ex. F.
Upon information and belief, Mr. Mosaku did not reach out to Ms. Schmidt. Instead, on
September 11, 2020, Plaintiff filed the Motion seeking a default judgment against Defendant for
its failure to timely file the Answer. Massen Aff., ¶ 11. Defendant’s counsel returned from
vacation on September 14, 2020. Upon learning that Plaintiff filed the Motion, Defendant’s
counsel immediately filed the Answer and emailed Plaintiff’s counsel to inform him that
Defendant’s failure to timely file was the “unintentional and regrettable” result of an office
miscommunication. Massen Aff., ¶ 12, Ex. E. Notwithstanding this explanation, Plaintiff did
not withdraw the Motion. Massen Aff., ¶ 13.
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III. ARGUMENT
A. The Court Should Deny Plaintiff’s Motion for Default Judgment
In order for a plaintiff to succeed in his motion for default judgment he must show that
the “defendant was properly served, that the defendant is in default, that the plaintiff has a
meritorious cause . . . .” Brokaw v. Cohen, 117 Misc.2d 31, 457 N.Y.S.2d 168 (N.Y. Sup. Ct.,
N.Y. Cty. 1982). “CPLR 3215 does not contemplate that default judgments are to be rubber-
stamped once jurisdiction and a failure to appear have been shown. Some proof of liability is
also required to satisfy the court as to the prima facie validity of the uncontested cause of
action.” Guzetti v. City of N.Y., 32 A.D.3d 234, 235 (1st Dep’t 2006) concurring opinion, citing
Joosten v. Gale, 129 A.D.2d 531, 535 (1st Dep’t 1987); see also Resnick v. Lebovitz, 28 A.D.3d
533, 534 (2d Dep’t 2006) (vacating default judgment because plaintiffs failed “to support their
motion for default judgment (see CPLR 3215) with at least enough facts to enable [the] court to
determine that a viable cause of action exists”) (internal quotations omitted).
Plaintiff has failed to state anywhere in his Motion that he has a meritorious case and the
basis for this belief. Even though Plaintiff attaches a copy of the Verified Complaint as an
exhibit to his Affidavit of Plaintiff in Support of Default Motion (Dkt. No. 7), Plaintiff does not
explain why he would prevail on those claims. Likewise, the Confidential Psychological Report,
also submitted as an exhibit in support of the Motion (Dkt. No. 8), addresses Plaintiff’s mental
state, not the merits of his allegations.
In the absence of any showing of merit by Plaintiff, the determination of the EEOC that
Plaintiff’s Charge of Discrimination did not evidence unlawful conduct by Defendant should be
given great weight. Although the EEOC’s determination is not binding on the Court, it shows
that the Court should not presume the merits of Plaintiff’s claims without the requisite showing.
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In sum, Plaintiff has not shown that his claims are meritorious and thus Plaintiff cannot satisfy
the requirements for a successful motion for default judgment.
In addition, a default judgment is not warranted here because Plaintiff has not shown that
he was prejudiced in any way by the brief delay in filing responsive pleadings. Plaintiff’s
Counsel knew since August 14, 2020 that Defendant’s counsel would be on vacation during the
week of September 7 - 11 and could reasonably presume that there would be no activity in the
case until her return. Moreover, Defendant has appeared and vigorously defended against
Plaintiff’s claims since November 2019 by successfully countering Plaintiff’s EEOC Charge of
Discrimination. Under this set of facts, Defendant deserves the opportunity to have the case
determined on its merits, which is preferred by the courts. See Sanford v. 27-29 W. 181st Street
Ass’n, Inc., 300 A.D.2d 250, 251 (1st Dep’t 2002) (“Finally, there is a preference that disputes be
resolved on their merits, and a liberal policy is adopted with respect to opening default
judgments in furtherance of justice to the end that the parties may have their day in court to
litigate the issues.”); Price v. Polisner, 172 A.D.2d 422, 423 (1st Dep’t 1990) (affirming lower
court’s order vacating a default judgment and noting that “courts favor a determination of an
action on the merits”).
As we have shown, Defendant’s counsel communicated immediately with Plaintiff’s
counsel upon receiving the Summons and Verified Complaint; twice requested time extensions;
responded while on vacation to Plaintiff’s counsel’s communication by identifying by name a
colleague who could remedy the situation; and filed the Answer immediately upon return and
informed Plaintiff’s counsel of the inadvertent mistake. The mistake in not filing responsive
pleadings was due to counsel’s and law firm error that occurred due to a vacation. Although
there were mishaps, they were inadvertent and not due to any persistent neglect. Accordingly,
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Plaintiff’s Motion seeking a default judgment should be denied. See, e.g., Matter of Gibson, 45
A.D.2d 678 (1st Dep’t 1974) (“it appearing that the default was due to a single, isolated,
inadvertent mistake and not due to willful default or persistent neglect, reason and justice dictate
that respondent be afforded its day in court”); Brokaw, 457 N.Y.S.3d at 170 (denying motion for
default judgment, and providing defendant thirty days from the date of the order to appear and
file a responsive pleading).
In light of Plaintiff’s failure to show merit to his claims or prejudice to his case, along
with Defendant’s active participation in this case and an inadvertent procedural error, Plaintiff’s
Motion should be denied.
IV. CONCLUSION
For all the foregoing reasons, Defendant respectfully requests that the Court deny
Plaintiff’s Motion.
Date: October 7, 2020 LITTLER MENDELSON, P.C.
New York, New York
/s/ Nina Massen
Jean L. Schmidt
Nina Massen
900 Third Avenue
New York, NY 10022.3298
212.583.9600
Attorneys for Defendant
Montefiore Medical Center
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FILED: BRONX COUNTY CLERK 10/07/2020 06:20 PM INDEX NO. 26901/2020E NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/07/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX O. BENJAMIN OKPESEYI, Index No. 26901/2020E Plaintiff, -against- MONTEFIORE MEDICAL CENTER, Defendant. MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT AGAINST DEFENDANT LITTLER MENDELSON, P.C. 900 Third Avenue New York, NY 10022.3298 Attorneys for Defendant Montefiore Medical Center 1 of 9 FILED: BRONX COUNTY CLERK 10/07/2020 06:20 PM INDEX NO. 26901/2020E NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/07/2020 TABLE OF CONTENTS PAGE I. PRELIMINARY STATEMENT ........................................................................... 1 II. STATEMENT OF PERTINENT FACTS ............................................................. 1 A. Plaintiff’s Employment .............................................................................. 1 B. Procedural History ..................................................................................... 2 III. ARGUMENT ......................................................................................................... 4 A. The Court Should Deny Plaintiff’s Motion for Default Judgment ............ 4 IV. CONCLUSION ...................................................................................................... 6 -i- 2 of 9 FILED: BRONX COUNTY CLERK 10/07/2020 06:20 PM INDEX NO. 26901/2020E NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/07/2020 TABLE OF AUTHORITIES PAGE(S) Cases Brokaw v. Cohen, 117 Misc.2d 31, 457 N.Y.S.2d 168 (N.Y. Sup. Ct., N.Y. Cty. 1982)....................................4, 6 Matter of Gibson, 45 A.D.2d 678 (1st Dep’t 1974) ................................................................................................6 Guzetti v. City of N.Y., 32 A.D.3d 234 (1st Dep’t 2006) ................................................................................................4 Price v. Polisner, 172 A.D.2d 422 (1st Dep’t 1990) ..............................................................................................5 Resnick v. Lebovitz, 28 A.D.3d 533 (2d Dep’t 2006) .................................................................................................4 Sanford v. 27-29 W. 181st Street Ass’n, Inc., 300 A.D.2d 250 (1st Dep’t 2002) ..............................................................................................5 Other Authorities CPLR 3215.......................................................................................................................................4 -i- 3 of 9 FILED: BRONX COUNTY CLERK 10/07/2020 06:20 PM INDEX NO. 26901/2020E NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/07/2020 Defendant Montefiore Medical Center (hereinafter, “Defendant” or “Montefiore”) submits this memorandum of law in opposition to Plaintiff’s Motion for Default Judgment Against Defendant (hereinafter, the “Motion”). I. PRELIMINARY STATEMENT This case arises from Plaintiff O. Benjamin Okpeseyi’s (“Plaintiff”) employment by Montefiore from August 22, 2013 until his termination on or about June 15, 2019. Plaintiff complains that during his employment he was discriminated against because of his race and/or national origin, and retaliated against by Montefiore. Plaintiff asserts claims pursuant to the New York State Human Rights Law, N.Y. Exec. Law §§ 290 et seq. and the New York City Human Rights Law, N.Y. City Admin. Code §§ 8-107. Plaintiff initiated this action by filing a Verified Complaint in Bronx County on July 6, 2020. Defendant twice requested and obtained from Plaintiff an extension of time to respond to the Verified Complaint. Due to unintentional law office failure, Defendant did not timely file the Answer. Plaintiff filed the Motion on Friday, September 11, 2020. Plaintiff’s Motion should be denied because: (i) he has not shown that he has a meritorious case or that he has been prejudiced by the brief delay in Defendant’s filing the Answer; (ii) Defendant successfully defeated Plaintiff’s claims at the administrative agency level; and (iii) Defendant’s failure to timely file the Answer was the result of an inadvertent mistake. II. STATEMENT OF PERTINENT FACTS A. Plaintiff’s Employment Montefiore Medical Center is one of the nation’s premier teaching hospitals. In addition to in-patient care, Montefiore serves the Bronx community through several out-patient programs, including Montefiore Home Care (“MHC”). MHC was created to allow newly-discharged 4 of 9 FILED: BRONX COUNTY CLERK 10/07/2020 06:20 PM INDEX NO. 26901/2020E NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/07/2020 patients the benefits of individually-tailored, at-home recuperation and recovery services. Plaintiff was hired by MHC in August 2013 as Patient Services Coordinator, responsible for providing administrative and clinical support to ten Registered Nurses. Affirmation of Nina Massen, dated October 7, 2020 (hereinafter, “Massen Aff.”), ⁋ 3. Plaintiff was promoted on May 16, 2016 to Director of Patient Services. Id. In 2017, Montefiore hired an outside agency, Simione, to do a top-to-bottom review of MHC and make recommendations for improvement. Id. at ⁋ 3. Simione concluded, inter alia, that Plaintiff’s position should be eliminated as part of a larger organizational restructuring. Id. Plaintiff’s employment was terminated on June 15, 2019 in accordance with this strategic plan. Id. at ⁋ 3. B. Procedural History Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission (hereinafter, the “EEOC”) alleging that the terms and conditions of his employment were discriminatory and his termination was retaliatory. Massen Aff., ¶ 4, Ex. A. Following its investigation, including consideration of the Position Statement submitted by Defendant, the EEOC determined that there was no violation of the law by Defendant, and issued a Notice of Right to Sue on March 6, 2020. Id. at Ex. B. On July 6, 2020, Plaintiff filed a Verified Complaint in this Court. Plaintiff asserts employment discrimination claims that are virtually identical to the allegations in Plaintiff’s EEOC Charge of Discrimination. Massen Aff., ¶ 5, Exs. A, C. Defendant was properly served with a Summons and Complaint. Massen Aff., ¶ 6. Due to an internal mail processing delay at Montefiore, Defendant’s counsel did not receive a copy of the Summons and Verified Complaint until August 13, 2020, and then immediately called Plaintiff’s counsel to request an extension of the deadline to respond to the -2- 5 of 9 FILED: BRONX COUNTY CLERK 10/07/2020 06:20 PM INDEX NO. 26901/2020E NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/07/2020 Verified Complaint. Massen Aff., ¶¶ 6-7. Defendant’s counsel sought an extension until September 18, 2020, one week after her return from a scheduled vacation. Plaintiff’s counsel granted an extension only until August 31, 2020. Massen Aff., ¶ 7. On August 26, 2020, Defendant’s counsel requested an additional two days’ extension until September 2, 2020, which was also granted. Massen Aff., ¶ 8, Ex. D. The Answer was ready for filing by the September 2, 2020 deadline, but due to miscommunication was not filed. Massen Aff., ¶ 9. Plaintiff’s counsel emailed Defendant’s counsel during her vacation to advise her that the Answer had not been filed. Defendant’s counsel responded that she could not remedy the situation directly while she was on vacation, but would ask a colleague (Jean Schmidt, Esq.), who appeared in the case, to address the matter. Massen Aff., ¶ 10, Ex. E. Defendant’s counsel forwarded Mr. Mosaku’s email from her business smartphone to her gmail account to be able to type more easily from her laptop. She typed an email to Ms. Schmidt asking her to file the Answer, but inadvertently forwarded that message to herself instead of Ms. Schmidt. Massen Aff., ¶ 10, Ex. F. Upon information and belief, Mr. Mosaku did not reach out to Ms. Schmidt. Instead, on September 11, 2020, Plaintiff filed the Motion seeking a default judgment against Defendant for its failure to timely file the Answer. Massen Aff., ¶ 11. Defendant’s counsel returned from vacation on September 14, 2020. Upon learning that Plaintiff filed the Motion, Defendant’s counsel immediately filed the Answer and emailed Plaintiff’s counsel to inform him that Defendant’s failure to timely file was the “unintentional and regrettable” result of an office miscommunication. Massen Aff., ¶ 12, Ex. E. Notwithstanding this explanation, Plaintiff did not withdraw the Motion. Massen Aff., ¶ 13. -3- 6 of 9 FILED: BRONX COUNTY CLERK 10/07/2020 06:20 PM INDEX NO. 26901/2020E NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/07/2020 III. ARGUMENT A. The Court Should Deny Plaintiff’s Motion for Default Judgment In order for a plaintiff to succeed in his motion for default judgment he must show that the “defendant was properly served, that the defendant is in default, that the plaintiff has a meritorious cause . . . .” Brokaw v. Cohen, 117 Misc.2d 31, 457 N.Y.S.2d 168 (N.Y. Sup. Ct., N.Y. Cty. 1982). “CPLR 3215 does not contemplate that default judgments are to be rubber- stamped once jurisdiction and a failure to appear have been shown. Some proof of liability is also required to satisfy the court as to the prima facie validity of the uncontested cause of action.” Guzetti v. City of N.Y., 32 A.D.3d 234, 235 (1st Dep’t 2006) concurring opinion, citing Joosten v. Gale, 129 A.D.2d 531, 535 (1st Dep’t 1987); see also Resnick v. Lebovitz, 28 A.D.3d 533, 534 (2d Dep’t 2006) (vacating default judgment because plaintiffs failed “to support their motion for default judgment (see CPLR 3215) with at least enough facts to enable [the] court to determine that a viable cause of action exists”) (internal quotations omitted). Plaintiff has failed to state anywhere in his Motion that he has a meritorious case and the basis for this belief. Even though Plaintiff attaches a copy of the Verified Complaint as an exhibit to his Affidavit of Plaintiff in Support of Default Motion (Dkt. No. 7), Plaintiff does not explain why he would prevail on those claims. Likewise, the Confidential Psychological Report, also submitted as an exhibit in support of the Motion (Dkt. No. 8), addresses Plaintiff’s mental state, not the merits of his allegations. In the absence of any showing of merit by Plaintiff, the determination of the EEOC that Plaintiff’s Charge of Discrimination did not evidence unlawful conduct by Defendant should be given great weight. Although the EEOC’s determination is not binding on the Court, it shows that the Court should not presume the merits of Plaintiff’s claims without the requisite showing. -4- 7 of 9 FILED: BRONX COUNTY CLERK 10/07/2020 06:20 PM INDEX NO. 26901/2020E NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/07/2020 In sum, Plaintiff has not shown that his claims are meritorious and thus Plaintiff cannot satisfy the requirements for a successful motion for default judgment. In addition, a default judgment is not warranted here because Plaintiff has not shown that he was prejudiced in any way by the brief delay in filing responsive pleadings. Plaintiff’s Counsel knew since August 14, 2020 that Defendant’s counsel would be on vacation during the week of September 7 - 11 and could reasonably presume that there would be no activity in the case until her return. Moreover, Defendant has appeared and vigorously defended against Plaintiff’s claims since November 2019 by successfully countering Plaintiff’s EEOC Charge of Discrimination. Under this set of facts, Defendant deserves the opportunity to have the case determined on its merits, which is preferred by the courts. See Sanford v. 27-29 W. 181st Street Ass’n, Inc., 300 A.D.2d 250, 251 (1st Dep’t 2002) (“Finally, there is a preference that disputes be resolved on their merits, and a liberal policy is adopted with respect to opening default judgments in furtherance of justice to the end that the parties may have their day in court to litigate the issues.”); Price v. Polisner, 172 A.D.2d 422, 423 (1st Dep’t 1990) (affirming lower court’s order vacating a default judgment and noting that “courts favor a determination of an action on the merits”). As we have shown, Defendant’s counsel communicated immediately with Plaintiff’s counsel upon receiving the Summons and Verified Complaint; twice requested time extensions; responded while on vacation to Plaintiff’s counsel’s communication by identifying by name a colleague who could remedy the situation; and filed the Answer immediately upon return and informed Plaintiff’s counsel of the inadvertent mistake. The mistake in not filing responsive pleadings was due to counsel’s and law firm error that occurred due to a vacation. Although there were mishaps, they were inadvertent and not due to any persistent neglect. Accordingly, -5- 8 of 9 FILED: BRONX COUNTY CLERK 10/07/2020 06:20 PM INDEX NO. 26901/2020E NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 10/07/2020 Plaintiff’s Motion seeking a default judgment should be denied. See, e.g., Matter of Gibson, 45 A.D.2d 678 (1st Dep’t 1974) (“it appearing that the default was due to a single, isolated, inadvertent mistake and not due to willful default or persistent neglect, reason and justice dictate that respondent be afforded its day in court”); Brokaw, 457 N.Y.S.3d at 170 (denying motion for default judgment, and providing defendant thirty days from the date of the order to appear and file a responsive pleading). In light of Plaintiff’s failure to show merit to his claims or prejudice to his case, along with Defendant’s active participation in this case and an inadvertent procedural error, Plaintiff’s Motion should be denied. IV. CONCLUSION For all the foregoing reasons, Defendant respectfully requests that the Court deny Plaintiff’s Motion. Date: October 7, 2020 LITTLER MENDELSON, P.C. New York, New York /s/ Nina Massen Jean L. Schmidt Nina Massen 900 Third Avenue New York, NY 10022.3298 212.583.9600 Attorneys for Defendant Montefiore Medical Center -6- 9 of 9