SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
US BANK, NA, AS LEGAL TITLE
TRUSTEE FOR TRUMAN 2016 SC6
TITLE TRUST,
Plaintiff
-against-
ASHMEEN MODIKHAN, et al.,
Defendants
Index No. 301/2010
705854/2021
Assigned Judge:
Hon. Martin J. Schulman
MOTION FOR STAY OF PROCEEDINGS
COMES NOW Defendant ASHMEEN MODIKHAN (hereinafter “Defendant”), and files
this Motion for Stay Proceedings (hereinafter “the motion”) pursuant to N.Y. C.P.L.R. § 2201. In
support thereof, the Defendant state as follows:
BACKGROUND
The instant action
1. The action was commenced on January 19, 2022, when Defendant was served
with a complaint from the Bank of America, N.A., NA, Successor by merger to BAC Home
Loans Servicing, LP fka Countrywide Home Loans, LP as the alleged lender.
2. On or about March 17, 2022, Defendant filed a Jurisdictional Challenge,
challenged the jurisdiction of the court over the case.
3. On March 21, 2022, Plaintiff, through counsel Friedman Vartolo LLP, filed a
Notice of Return and Rejection, where Plaintiff denied Defendant’s jurisdictional challenge as a
response to the complaint.
4. On or about September 15, 2022, Plaintiff filed a Notice of Sale, which sale was
scheduled for October 14, 2022.
5. On or about September 20, 2022, Defendant filed a motion to vacate the default
foreclosure judgment. Here, Defendant maintained that
6. On or about September 28, 2022, Plaintiff filed an opposition to Defendant’s
motion to vacate the default foreclosure judgment.
7. On or about October 4, 2022, Defendant then filed an objection to the Notice of
Sale.
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8. On or about October 5, 2022, Plaintiff filed a Notice of Return and Rejection of the
objection to the Notice of Sale.
9. On or about October 11, 2022, Defendant filed an opposition to the Notice of
Return and Rejection of the objection to the Notice of Sale.
10. On or about October 13, 2022, the Bankruptcy Court in case number 19-46591
issued an order terminating the automatic pursuant to Bankruptcy Code Section 362(d) to allow the
“Secured Creditor to pursue its rights under applicable laws with respect to the property located
property.”
11. Consequently, on or about October 13, 2022, Defendant filed an Order to Show
Cause why an order should not be issued preventing the Plaintiff from selling the property. On the
same day, Defendant filed an Emergency Affidavit, seeking the Court to urgently consider her
Order to Show Cause before the scheduled sale on October 14th.
12. On or about October 13, 2022, the Plaintiff drafted a letter to the Judge in
Opposition to the Order to Show Cause.
13. The Court then entered an Order Confirming Referee Report and Judgment of
Foreclosure and Sale on October 13, 2022.
14. Defendant then filed an Appeal against said decision at the Appellate Division:
Second Department.
ARGUMENTS
It is for just and/or good cause to stay the proceedings herein
15. “CPLR 2201 provides that "[e]xcept where otherwise prescribed by law, the court
in which an action [or proceeding] is pending may grant a stay of proceedings in a proper case,
upon such terms as may be just" (emphasis added)” Schwartz v. Nycha, 219 A.D.2d 47, 48
(N.Y. App. Div. 1996).
16. Besides, a motion pursuant to CPLR 2201 is properly brought before the court of
original instance. See Rhodes v Mosher, 115 AD2d 351 [1985]; see also Schwartz v. New York
City Housing Authority, 219 A.D.2d 47, 47 (A.D. 2nd Dept. 1996).
17. The Court has broad discretion to grant a stay in order to avoid "the risk of
inconsistent adjudications, application of proof and potential waste of judicial resources" See In
re Michael Tenenbaum, 81 A.D.3d 738, 739, 2011 N.Y. Slip Op. 1033, 916 N.Y.S.2d 205 (N.Y.
App. Div. 2011), quoting Zonghetti v. Jeromack, 150 A.D.2d 561, 541 N.Y.S.2d 235 (N.Y. App.
– 3 –
Div. 1989).
18. In this case, Defendant has duly challenged the Order Confirming Referee Report
and Judgment of Foreclosure and Sale on October 13, 2022. If Appellate Division allows
Defendant’s appeal, the foreclosure judgment and sale would be reversed, and would be entitled
to her property.
19. The foregoing therefore amounts to just cause to stay the proceedings in this case,
until the Appellate Division issues its determination on said Court’s decision.
WHEREFORE, due to the foregoing averments, Defendant requests that the
proceedings in this matter be stayed until the Supreme Court of the State of New York, Appellate
Division: Second Department, issues a determination on Defendant’s Appeal. Defendant also
prays this Court give any other order it deems just.
Respectfully,
____________________ ___________________
ASHMEEN MODIKHAN Date
94-22 Magnolia Court, Unit 1B
Ozone Park, NY 11753
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CERTIFICATE OF SERVICE
I certify that a copy of this Motion was served on [ENTER DATE] to the following:
Attorneys for Plaintiff
Annette Gershovich, Esq.
Friedman Vartolo LLP
Attorneys for Plaintiff
1325 Franklin Avenue, Suite 160
Garden City, New York 11530
T: (212) 471-5100
____________________ ___________________
ASHMEEN MODIKHAN Date
94-22 Magnolia Court, Unit 1B
Ozone Park, NY 11753
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