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 THE
COMPLAINT
COMES NOW Plaintiff ASHMEEN MODIKHAN, pro se, and files this Response to
Defendants’ Motion to Dismiss the Complaint. In support thereof, the Plaintiff states as follows:
I. THE COURT HAS JURISDICTION OVER THE DEFENDANTS
Plaintiff asserts 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).
In this case, the Defendants submit that Plaintiff served them by mail, which is contrary
to CPLR §308. Plaintiff avers that, as a pro se litigant, she made due effort in her capacity to
serve the State Defendants. For instance, Plaintiff sent the Defendants Certified Mails.
It follows; as pro se, Plaintiff diligently served the Summons and the Complaints to the
Defendants. Plaintiff further avers that she, 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, she 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.
II. 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. All of
Defendants’ attempts to establish a connection between the Defendants and the parties in the
previous case, are futile.
III. 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 wrongful foreclosure claim states a cause of action
In foreclosure actions, 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, wrongful foreclosure occurs when a bank or
lender seeks to reclaim a home, foreclosing on the property even though they have no legal cause
to do so, or when they are in violation of the Real Property Actions and Proceedings Law.
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.
iii. Plaintiff has a valid cause of action for breach of contract
In 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), New York
courts apply a special analysis that was first established by Chief Judge Cardozo in Ultramares
Corp. v. Touche, 255 N.Y. 170, 174 (1931). The court in Ultramares 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).
In this case, 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).
iv. Plaintiff’s RICO cause of action is not time barred
A RICO claim matures when the plaintiff’s injury and the subsequent damages resulting
there from become clear and concrete. Further, the statute may toll for claims against co-
conspirators who did not actively participate in the RICO enterprise where the Plaintiff 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).
Plaintiff first 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.
v. Plaintiff has stated a valid cause of action for Slander of Title and Slander of
Credit
Plaintiff asserts that Slander of title is a specialized common law tort which refers to a
false statement, published by a third party or entity, which disparages a person or entity’s title to
property and causes financial harm or loss.
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.
vi. Plaintiff has sufficiently stated a cause of action for infliction of emotional
distress
Contrary to the Defendants’ averments, Plaintiff 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).
Accordingly, as a result of the Defendants’ breach of their duties, Plaintiff was subjected
to emotional distress and/or harm.
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, ASHMEEN MODIKHAN, 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):
XXX
By:
___________________________
XXX
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