MOTION TO DISMISS

SUPREME COURT OF THE STATE OF XXX

COUNTY OF XXX

XXX,
Plaintiff
-against-
XXX, et al.,
Defendants

Index No. XXX

RESPONSE TO THE DEFENDANTS’
MOTION TO DISMISS

COMES NOW Plaintiff ASHMEEN MODIKHAN, pro se, and files this Response to
Defendants XXX LLC, XXX hereinafter the “Defendants”)’s Motion for a judgment
dismissing the Complaint and Amended Complaint filed by the Plaintiff. Plaintiff also opposes
Defendants’ request that Plaintiff be sanctioned under 22 NYCRR §130-1.1. In support thereof,
the Plaintiff states as follows:
I. Standards for Dismissal
Defendants seek dismissal of the Plaintiff’s Complaint and Amended Complaint, citing
CPLR §§3211(a) (1) (5) (7) (8).
First, under CPLR §§3211(a) (1), in order for evidence to qualify as "documentary," it
must be unambiguous, authentic, and undeniable. See Fontanetta v John Doe 1, 73 AD3d 78, 84-
86 [2d Dept 2010]). Affidavits, deposition testimony, or letters are not considered "documentary
evidence" under CPLR § 3211 (a) (1). See Suchmacher v Manana Grocery, 73 AD3d 1017 [2d

Dept 2010]; Fontanetta v John Doe 1, 73 AD3d at 85-87 [2d Dept 2010]). Affidavits submitted
by a defendant "will almost never warrant dismissal under CPLR 3211" See also Lawrence v
Miller, 11 NY3d 588, 595 [2008]. Further, Plaintiff’s averments of fraud invalidate any
documentary evidence Defendants seek to rely on in the case.
Regarding dismissal under CPLR §§3211 (5), and construing the facts as alleged in the
complaint in the light most favorable to the plaintiff, Plaintiff avers that the defendants failed to
establish their prima facie entitlement to dismissal pursuant to CPLR 3211(a)(5). See Swift v New
York Med. Coll., 25 AD3d at 687). Notably, the Defendants have not proved that they were
parties in the foreclosure action.
Regarding CPLR §§3211 (7), "[i]t is well settled that on a motion to dismiss a pleading
for failure to state a cause of action pursuant to CPLR §3211 (7), the Plaintiff’s Complaint and
Amended Complaint are to be liberally construed, accepting all the facts alleged therein to be
true and according the allegations the benefit of every possible favorable inference." Taverna v.
Mircochip Technology. Inc., 268 A.D.2d 520, 702 N.Y.S.2d 104.
Lastly, under CPLR §§3211 (8), Plaintiff "need only demonstrate that facts may exist
whereby to defeat the motion. It need not be demonstrated that they do exist." See Peterson v.
Spartan Industries, 33 N.Y. 2d 463,466 (1974); CPLR 3211 [d]. "In the context of a CPLR 3211
(a) (8) motion to dismiss … a plaintiff is not required to make a prima facie showing of
jurisdiction." Mobile Training & Education v. Aviation Ground Schools of America, 28 Misc. 3d
1226A, 1226A (N.Y. Supreme Court N.Y. County 2010) (decision by Justice Bransten) (citing
Peterson v. Spartan Industries, 33 N.Y. 2d at 466). "In order to defeat a dismissal motion, a
plaintiff need only demonstrate that jurisdictional facts may exist and that it is entitled to the
disclosure expressly sanctioned by CPLR 3211 (d)." Id.

II. The Court has jurisdiction over the Defendants
An affidavit of service is prima facie evidence of proper service. See Caba v Rai, 63
AD3d 578, 582-583 [1st Dept 2009]; Scarano v Scarano, 63 AD3d 716, 716 [2d Dept 2009];
Simonds v Grobman, 277 AD2d 369, 370 [2d Dept 2000]. Further, personal jurisdiction will be
upheld, without a traverse hearing, if the only evidence submitted to controvert service is a bare
denial of service. See Beneficial Homeowner Service Corp. v Girault, 60 AD3d 984, 984 [2d
Dept 2009]; Chemical Bank v Darnley, 300 AD2d 613, 613 [2d Dept 2002]. Personal jurisdiction
will be upheld if the Defendant merely makes reference to a minor discrepancy, such as the
description of the recipient listed in the server’s affidavit. See Green Point Savings Bank v Clark,
253 AD2d 514, 515 [2d Dept 1998].
Stated differently, a mere conclusory denial of service does not negate the propriety of
service established by an affidavit of service. See Caba v Rai, 63 AD3d 578, 683 [1st Dept 2009]
(Sworn denial conclusorily stating that defendant was not served was insufficient to rebut service
as evinced by the affidavit of service).
It is also Plaintiff’s assertion that Judges and courts must give pro se litigants wide
latitude and should not dismiss an action if there is any valid cause that they can see. Further,
Courts will go to particular pains to protect pro se litigants against consequences of technical
errors if injustice would otherwise result.  U.S. v. Sanchez, 88 F.3d 1243 (D.C.Cir. 1996).
Further, in the context of a CPLR 3211 (a) (8) motion to dismiss … a plaintiff is not
required to make a prima facie showing of jurisdiction." Mobile Training & Education v.
Aviation Ground Schools of America, 28 Misc. 3d 1226A, 1226A.
In this case, the Defendants submit that Plaintiff served them by mail, which is contrary
to CPLR §308. Defendants also aver that Yasmin Winston, the person who served the Complaint

is not a process server. Plaintiff avers that, as a pro se litigant, she made due effort in her
capacity to serve the Defendants. Plaintiff filed an affidavit of service, which sufficiently
demonstrates her efforts to serve the Defendants, in her capacity as a pro se Plaintiff.
It follows; as pro se, Plaintiff diligently served the Summons and the Complaints to the
Defendants. Plaintiff further avers that he, as a pro se litigant, lacked the specific intricacies
regarding serving the Defendants. For that reason, Plaintiff prays that this Court accepts the
Plaintiff’s service of Summons and Complaints on the Defendants, and accept personal
jurisdiction of this case.
Plaintiff further avers that in the event the Court holds that Plaintiff committed the
alleged technical error by serving process by mail, Plaintiff is bound to suffer immense injustices
if the case is dismissed. Notably, if the case is dismissed for the said technicality, Plaintiff would
not have an opportunity to seek legal redress for the injustices and/or causes of action raised in
the Complaint against the Defendants. Plaintiff therefore prays this Court to protect her against
the consequences of her technical error.

III. The Complaint is not barred by res judicata and collateral estoppel, as
alleged.
A “linchpin of res judicata is an identity of parties actually litigating successive actions
against each other: the doctrine applies only when a claim between the parties has been
previously brought to a final conclusion.” (Emphasis added) City of N.Y. v. Welsbach Elec.
Corp., 9 N.Y.3d 124,127-28 (2007) (quoting Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d
343, 347 (1999) (internal quotations omitted)).
The Defendants assert that Plaintiff’s claims against the Defendants are barred by res
judicata and collateral estoppel. The Defendants argue that since the Defendants were Plaintiff’s

counsel in the previous foreclosure case, Plaintiff is barred from including them as Defendants
here, because of res judicata and collateral estoppel. On the contrary, Plaintiff avers that the
Defendants were not parties in the previous foreclosure action involving Plaintiff. It is trite law
that attorneys are not parties to the action. See Marcus v. Marcus, 17 A.D.3d 219, 793 N.Y.S.2d
375 (N.Y. App. Div. 2005). It follows; all of Defendants’ attempts to establish a connection
between the Defendants and the parties in the forclosure case, are futile.
IV. The complaint sufficiently states a cause of action
i. Standard of Review
A court faced with a motion to dismiss a pro se complaint must read the complaint’s
allegations expansively, Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 596, 30 L. Ed.
2d 652 (1972), and take them as true for purposes of deciding whether they state a claim. Cruz v.
Beto, 405 U.S. 319, 322, 92 S. Ct. 1079, 1081, 31 L. Ed. 2d 263 (1972).
Pro se litigants’ court submissions are to be construed liberally and held to less stringent
standards than submissions of lawyers.  If the court can reasonably read the submissions, it
should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax
and sentence construction, or litigant’s unfamiliarity with rule requirements. Boag v.
MacDougall, 454 U.S. 364, 102 S.Ct. 700, 70 L.Ed.2d 551 (1982); Estelle v. Gamble, 429 U.S.
97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)(quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78
S.Ct. 99, 2 L.Ed.2d 80 (1957)); Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652
(1972);  McDowell v. Delaware State Police, 88 F.3d 188, 189 (3rd Cir. 1996); United States v.
Day, 969 F.2d 39, 42 (3rd Cir. 1992) (holding pro se petition cannot be held to same standard as
pleadings drafted by attorneys); Then v. I.N.S., 58 F.Supp.2d 422, 429 (D.N.J. 1999).

ii. Plaintiff’s claims states causes of action
Defendants aver that her complaint set forth various allegations against an unspecified
“bank.” On the contrary, Plaintiff’s raises causes of action on wrongful foreclosure, breach of
contract, RICO, Slander of Title, Slander of Credit, and Intentional Infliction of Emotional
Distress against the Defendants.
Under the foreclosure cause of action, the bank must demonstrate strict compliance with
the provisions of the Real Property Actions and Proceedings Law. See Bank of Am., N.A. v
Keefer, 2022 NY Slip Op 02776, Second Dept 4-27-22. Accordingly, Plaintiff avers that the
wrongful foreclosure occurred when BAC Home Loans Servicing, LP (“BAC”) sought to
reclaim her home, foreclosing on the property even though they had no legal cause to do so, or
when they are in violation of the Real Property Actions and Proceedings Law.
Liability falls on the Defendants, who ought to have advised BAC accordingly, to protect
Plaintiff’s due process rights. Plaintiff further avers that wrongful foreclosures, if not resolved or
reversed, can have severe years-long impacts on homeowners. From the immediate issues of
relocating and the financial and emotional stress it can create, to further in the future when things
like adversely affected credit scores can affect future ability to buy property. Plaintiff’s
complaint demonstrates how the Defendants violated the Real Property Actions and Proceedings
Law, which violations amount to a wrongful foreclosure.
On the breach of contract cause of action, Plaintiff avers that on dealing with liability for
the tortious acts of persons not in privity with the alleged tortfeasor (typically a professional,
such as an accountant, lawyer, and architect), the Court in Ultramares Corp. v. Touche, 255 N.Y.
170, 174 (1931) established the principle that liability for misstatements or omissions to a third
party not in contractual privity may attach where the representation is made for the principal

purpose of having it relied upon by such person, and where its benefit to the party authorizing the
representation stems precisely from such reliance by the third party. Vereins-Und Westbank, AG
v. Carter, 691 F. Supp. 704, 709 (S.D.N.Y.1988).
The Defendants owed to their employer and by extension to Plaintiff, a duty imposed by
law to perform their services without fraud, and a duty growing out of contract to perform their
services with care and caution proper to their calling. Fraud includes the pretense of knowledge
when knowledge there is none. To third parties, including Plaintiff, who would be affected by the
Defendants’ services, the defendants owed a like duty to perform the services without fraud. See
Eaton, Cole Burnham Co. v. Avery, 83 N.Y. 31; Tindle v. Birkett, 171 N.Y. 520).
On the RICO cause of action, Plaintiff avers that the RICO claim matured when her
injury and the subsequent damages resulting there from become clear and concrete. She further
alleges that the statute may toll for claims against co-conspirators who did not actively
participate in the RICO enterprise where she did not remain ignorant of his claim through fault or
want of diligence. See Jerry Kubecka v. Avellino, 898 F. Supp. 963, 971 (E.D.N.Y. 1995). It
follows; Plaintiff avers that the extent of Plaintiff’s injuries and damages subsequent to the
foreclosures became clear and concrete at the end of the foreclosure actions. Further, the Plaintiff
was ignorant of the Defendants’ involvement as co-conspirators in the RICO enterprise. The
statute of limitations was therefore tolled in that regard.
On the slander of title and credit causes of action, Plaintiff asserts that the Defendants
wrongly interpret New York law on slander of title. In New York, a plaintiff alleging slander of
title only has to prove: There was a statement which falsely casted doubt on the validity of a
party’s title; such statement is reasonably calculated to cause harm; and such statement does in
fact result in special damages. See Rosenbaum v. City of New York, 861 NE 2d 43 – NY: Court of

Appeals 2006. Further, the doctrine of equitable estoppel can prevent a defendant from pleading
the statute of limitations as a defense where, by fraud, misrepresentation, or deception, he or she
had induced the plaintiff to refrain from filing a timely action. Simcuski v Saeli, 44 N.Y.2d 442
[2d Dept 1978].
Equitable estoppel is applicable where the plaintiff knew of the existence of the cause of
action, but the defendant’s misconduct caused the plaintiff to delay in bringing suit. Green v
Albert, 199 A.D.2d 465 [2d Dept 1993]; Murphy v Wegman’s Food Mkts., 140 A.D.2d 973 [4th
Dept 1988]. In the instant action, the Defendants, acting in their capacities as counsel in the
foreclosure action, fraudulently disclaimed Plaintiff’s title, which necessitated Plaintiff to
concentrate her efforts in challenging the Defendants’ conduct. Accordingly, Plaintiff could not
file the action at that time, which Defendants’ conduct equitably estopped Plaintiff from timely
filing the instant action.
On the infliction of emotional distress cause of action, Plaintiff avers that she has already
established how the Defendants breached their duties to Plaintiff. Notably, the Defendants owed
to their employer and by extension to Plaintiff, a duty imposed by law to perform their services
without fraud, and a duty growing out of contract to perform their services with care and caution
proper to their calling. Fraud includes the pretense of knowledge when knowledge there is none.
To third parties, including Plaintiff, who would be affected by the Defendants’ services, the
defendants owed a like duty to perform the services without fraud. See Eaton, Cole Burnham Co.
v. Avery, 83 N.Y. 31; Tindle v. Birkett, 171 N.Y. 520). Therefore, as a result of the Defendants’
breach of their duties, Plaintiff was subjected to emotional distress and/or harm.

iii. Plaintiff has not engaged in any frivolous conduct, and therefore should not
be sanctioned
It was noted by the Court in Chinn v. Plastino, 206 N.Y.L.J. 80 (NY Civ Ct, New York
County 1991) to wit, “[t]his Court, and others, are losing patience with those attorneys who make
motions for sanctions almost as a matter of course. Such conduct cannot be condoned, for it may
have a chilling effect on some litigants, and leads to needless expenditure of time and money by
litigants, not to mention the Court’s time.”
Plaintiff avers that none of her conduct amounts to frivolous conduct, which justifies her
sanction by this honorable court. On the contrary, Plaintiff has made meritorious claims in law,
all in pursuit of justice. For that reason, Defendants’ request for sanctions must be denied.

CONCLUSION

WHEREFORE, the foregoing considered, Plaintiff prays for an order of dismissing the
allegations in the Defendants’ Motion to Dismiss. Plaintiff further prays for any other order this
court deems just.

Respectfully submitted,

Dated: _______________ By:

___________________________
XXX.

CERTIFICATE OF MAILING

I, XXX, certified on this ______day of ________ XXX, I deposited a
true copy of the above to the Defendants, by placing the documents with prepaid postage in the
United States mailbox address(es):

[ENTER DEFENDANTS’ ADDRESS]

By:

___________________________
XXX

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