SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
_____________________________________
ASHMEEN MODIKHAN,
Plaintiff
-against-
MARTIN J. SCHULMAN, et al.,
Defendants
Index No. 707524/2022
MOTION TO ACCEPT LATE FILING OF RESPONSES
COMES NOW Plaintiff ASHMEEN MODIKHAN (hereinafter “Plaintiff”), and files this
motion to accept late filing of responses. In support thereof, the Plaintiff state as follows:
1. On or about September 13, 2022, Plaintiff, pro se, sought to file Responses to the
Defendants’ Motions to Dismiss Plaintiff’s Complaint. However, when Plaintiff was filing the
documents, the name of attorney Ronald P. Labeck showed up as Plaintiff’s attorney. Plaintiff
was therefore not able to complete the filings.
2. Consequently, Plaintiff emailed the court and the law firm to have the error
corrected. The error was finally corrected. However, the error caused a delay of the Plaintiff’s
filing of the Responses to the Defendants’ Motions to Dismiss. The court clerk has so far
concluded that Plaintiff has not responded to the Motions to Dismiss.
3. The failure to file timely is a mere irregularity which can be cured by an order
nunc pro tunc. See Molyneaux v. Sevilla, 22 Misc. 2d 450, 194 N.Y.S.2d 417 (N.Y. Misc. 1959).
4. It is also recognized that the standard for restoring an action to the calendar is
essentially the same as for determining whether to set aside a default judgment. Thus, the
plaintiff must show merit, lack of prejudice to the defendant, and excusable neglect. See
Ruggiero v. Elbin Realty Inc., 51 A.D.2d 1011 (N.Y. App. Div. 1976).
5. In the instant action, Plaintiff avers that the failure to file the Responses was
caused by reasons beyond Plaintiff’s control. Notably, as described above, Plaintiff was already
filing the Responses on September 13, 2022, when the Plaintiff noticed the name of an attorney
allegedly representing her. This error needed immediate attention.
6. Consequently, in an attempt to correct the error, Plaintiff could not effect timely
filing of the Responses. Plaintiff avers that this amounts to excusable neglect that justifies this
motion to file the responses late. Further, Defendants would not be prejudiced by this Court’s
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granting Plaintiff’s instant motion, cognizant and protective of Plaintiff’s access to justice.
WHEREFORE, due to the foregoing averments, Plaintiff requests that this Court
allows Plaintiff file the Responses to the Defendants’ Motions to Dismiss the Complaint.
Plaintiff 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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