SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
_____________________________________
ASHMEEN MODIKHAN,
Plaintiff,
v.
GOLDEN TOUCH TRANSPORTATION,
AND JOHN DOE, (SAID NAME BEING
FICTITIOUS AND INTENDED TO BE THE
OPER ATOR OF THE SHUTTLE BUS
WHO CLOSED THE DOOR ON THE
PLAINTIFF)
Defendant.
MOTION FOR STAY OF PROCEEDINGS
Index No. 706339/2015
COMES NOW Plaintiff ASHMEEN MODIKHAN (hereinafter “Plaintiff”), and files this
Motion for Stay Proceedings (hereinafter “the motion”) pursuant to N.Y. C.P.L.R. § 2201. In
support thereof, the Plaintiff state as follows:
BACKGROUND
The instant action
1. Plaintiff filed this personal injury and Worker’s Compensation matter on or about
June 17, 2015. Plaintiff had sustained injury while working for American Airlines. Accordingly,
Plaintiff hired attorney Frank Cassisi (hereinafter “the attorney”) to help in the case. Defendant
Golden Touch severed their Verified Answer on or about August 6, 2015.
2. Ever since Plaintiff hired the attorney, he had been requesting the attorney for a
written status update on the case. However, the attorney has never provided Plaintiff the status
updates as requested.
3. Further, on or about June 23, 2022 the attorney’s office emailed Plaintiff a letter
dated June 6, 2022 from Naomi J. Skura the attorney for the Defendant, confirming a settlement
offer of $500,000. Plaintiff was not aware of the Settlement, and had never given the Defendant
his (Plaintiff’s) consent or intention to settle the matter. On or about August 18, 2022, Plaintiff
filed an Objection to the Trustee’s Motion for Approval of Settlement.
4. On or about September 2, 2022, the attorney filed a Stipulation- Amending
Caption, with consent to sign on behalf of the Defendant’s Golden Touch Transportation
attorney. Aggrieved of the attorney’s conduct, Plaintiff sent the attorney a notice of termination
– 2 –
of counsel, on August 5, 2022. Plaintiff then filed a Motion to formally effect the termination of
Frank Cassisi as his counsel. It is interesting that Frank J. Cassisi, P.C. still alleges to be
Plaintiff’s attorney on record.
5. On or about September 29, 2022, Frank J. Cassisi, P.C., moved the Court for an
Order pursuant to CPLR 1018 and 1021 granting Motion for the Substitution, an order to Amend
of the Caption, and for such other and further relief as this Court deems just and proper. In the
motion, Frank J. Cassisi, P.C requested the court to substitute Alan Nisselson as Trustee for the
Chapter 7 Bankruptcy Estate of Ashmeen Modikhan as Plaintiff, in place and instead of
Ashmeen Modikhan and amending the caption of this action to reflect the substitution of the
Estate as Plaintiff. Frank J. Cassisi, P.C further argued that Plaintiff Ashmeen Modikhan no
longer has any interest in this case as she filed for bankruptcy in the Eastern District of New
York on October 31, 2019.
6. Consequently, the Court set the hearing date of the motion at January 19, 2023.
The Court then scheduled a pre-trial conference on January 30, 2023.
The Bankruptcy case
7. On October 31, 2019, Modikhan filed for Chapter 13 bankruptcy protection, at the
United States Bankruptcy Court for the Eastern District of New York (In re Modikhan, Case No.:
1-19-46591).
8. The Chapter 13 bankruptcy proceeding was converted to a proceeding under
Chapter 7 on March 1, 2021. The next day, the Estate was appointed as trustee. In the
Bankruptcy Action, the Estate moved for the authority to retain Cassisi & Cassisi, PC, which was
changed to the Law Office of Frank J. Cassisi, P.C. as of February 2022, as Special Personal
Injury Counsel.
9. The Court granted the Estate’s motion to retain Cassisi & Cassisi, P.C. as Special
Personal Injury on July 30, 2021.
10. On August 25, 2022, the presiding judge, Hon. Jil Mazer-Marino issued an order
granting the Trustee Allan Nisselson proposed settlement of Plaintiff’s personal injury case (the
instant case) and granting the Trustee’s Opposition to Plaintiff’s Motion to Withdraw from the
Chapter 7 proceedings.
11. Plaintiff has since filed an Appeal against the said decision, which appeal is
currently ongoing. Plaintiff has also filed a Motion for Relief from Judgment, in the same case.
– 3 –
ARGUMENTS
It is for just and/or good cause to stay the proceedings herein
12. “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).
13. 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).
14. 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.
Div. 1989).
15. In the instant case, Plaintiff has a related case in the Bankruptcy Court, in which
case the Trustee, Allan Nisselson, proposed a settlement of the instant case. Plaintiff objected to
the motion, and the Bankruptcy Court ultimately issued a decision.
16. Plaintiff also sought to withdraw the bankruptcy case. The Trustee also objected
to the motion to withdraw the case. The Court again made a decision against the Plaintiff.
17. Plaintiff has duly challenged the two decisions. The decisions directly affect the
proceedings in this case. For instance, the Trustee can only claim to represent Plaintiff, if there is
an ongoing bankruptcy case. If the Court of Appeal allows Plaintiff to withdraw the Bankruptcy
case, the Trustee cannot therefore claim to represent Plaintiff in this case.
18. It is also on the foregoing premise that the Trustee sought to propose and/or enter
a settlement in this case, contrary to Plaintiff’s interests.
19. The foregoing therefore amounts to just cause to stay the proceedings in this case,
until the Appeal Court issues its determination on said Bankruptcy Court decisions.
WHEREFORE, due to the foregoing averments, Plaintiff requests that the
proceedings in this matter be stayed until the United States District Court, Eastern District of
New York, issues a determination on Plaintiff’s Appeal. Plaintiff also prays this Court give any
other order it deems just.
– 4 –
Respectfully,
____________________ ___________________
ASHMEEN MODIKHAN Date
94-22 Magnolia Court, Unit 1B
Ozone Park, NY 11753
– 5 –
CERTIFICATE OF SERVICE
I certify that a copy of this Motion was served on [ENTER DATE] to the following:
Attorneys for Defendant
Lewis Brisbois Bisgaard & Smith LLP
Golden Touch Transportation
77 Water Street, Suite 2100
New York, NY 1005
(212)232-1300
Plaintiff’s Attorney (Herein terminated)
Frank J. Cassisi, Esq.
114 Old Country Road/Suite 440
Mineola, New York 11501
(516)294-5050
____________________ ___________________
ASHMEEN MODIKHAN Date
94-22 Magnolia Court, Unit 1B
Ozone Park, NY 11753
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