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
MEMORANDUM OF LAW IN SUPPORT
OF MOTION TO VACATE ORDER
PRELIMINARY STATEMENT
Plaintiff Ashmeen Modikhan submits this memorandum of law in support of her motion
pursuant to CPLR 2221(a) for an order to vacate this Court’s decision issued on November 10,
2022, which decision denied Plaintiff’s Motions for Default Judgment and Summary Judgment.
In support of this motion, Plaintiff states as follows:
i. The court erred in denying Plaintiff’s motion for default judgment
It is settled law that Plaintiffs establish their entitlement to default judgment against
defendants by submitting "proof of service of the summons and the complaint, the facts
constituting the claim, and . . . defendant[s’] default" See Diederich v Wetzel, 112 AD3d 883, 883
[2d Dept 2013]; see also PNC Bank, N.A. v Harmonson, 154 AD3d 1347, 1348 [4th Dept 2017].
Accordingly, to successfully argue a motion for default judgment, a plaintiff must meet the
following three requirements:
a) The Plaintiff must submit a proof of service of the summons and complaint;
b) The Plaintiff must submit a proof of the facts constituting its claim; and
2
c) The Plaintiff must submit a proof of the defendant’s default in answering or
appearing.
It is further notable that in arguing a motion for default judgment, the standard of proof is
not stringent, and amounts only to some firsthand confirmation of the facts. See CPLR 3215(f);
see also 215 W. 28th St. Prop. Owner LLC v. Sibk Constr. Group LLC, 2020 NY Slip Op.
34045(U).
Plaintiff clearly met all the requirements for an award of a default judgment. First,
Plaintiff filed a Complaint, Summons, and Proof of Service. This is evidenced by the court
docket, which reflects Plaintiff’s filings. Notably, on April 6, 2022, Plaintiff filed the Complaint
and Summons. Plaintiff then filed an Affidavit of Service of the Complaint and Summons, which
affidavit was signed by the process server, Yasmin Winston.
Next, Plaintiff provided a proof of facts by swearing an Affidavit, which she filed
together with the Complaint and Summons on April 6, 2022. The Affidavit was witnessed and
signed by Sarah Balgobin, a notary public registered in the state of New York.
Lastly, Plaintiff demonstrated how the Defendants failed to provide a timely answer as
required under CPLR 3215(a). Notably, the court docket shows how the Plaintiff received only
one response to her Complaint. The remaining Defendants failed to enter appearance by filing
responses to Plaintiff’s Complaint within the time specified under the applicable law.
Accordingly, the Court erred in denying Plaintiff’s motion for default judgment, which
meets all threshold provided by the law. This court’s denial of Plaintiff’s motion for default
judgment amounts to this Court turning a blind eye to a blatant disregard of the law.
It is therefore proper for this Court to vacate its decision denying Plaintiff’s motion for
default judgment. It would fly in the interest of justice, for this court to deny Plaintiff’s motion.
3
ii. Plaintiff is entitled to summary judgment
To be entitled to the remedy of summary judgment, the moving party "must make a
prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence
to demonstrate the absence of any material issues of fact from the case" See Winegrad v New
York Univ. Med. Ctr., 64 NY2d 851, 853, 487 NYS2d 316 [1985].
When deciding a summary judgment motion, the court views the alleged facts in the light
most favorable to the non-moving party. See Sosa v 46th St. Dev. LLC, 101 AD3d 490, 492, 955
NYS2d 589 [1st Dept 2012].
Once a movant meets its initial burden, the burden shifts to the opponent, who must then
produce sufficient evidence to establish the existence of a triable issue of fact. See Zuckerman v
City of New York, 49 NY2d 557, 560, 427 NYS2d 595 [1980].
The court’s task in deciding a summary judgment motion is to determine whether there
are bonafide issues of fact and not to delve into or resolve issues of credibility. See Vega v
Restani Constr. Corp., 18 NY3d 499, 505, 942 NYS2d 13 [2012].
In this case, the Plaintiff made a prima facie showing of entitlement as a matter of law.
Notably, Plaintiff tendering sufficient evidence to demonstrate the absence of any material issues
of fact. She filed an Affidavit in support of her averments. Plaintiff presented a chronology of
facts, which showed in careful detail how she is entitled to summary judgment. Specifically,
Plaintiff showed how there was no evidence of chain of possession of the original note. She
traced the events as far back as 2005, when the original note was made. Plaintiff maintains that
this amounts to a sufficient showing of the absence of any issue of material facts.
It is further notable that once Plaintiff made a prima facie showing of entitlement as a
matter of law, the burden shifted to the State Defendants to provide evidence of issues of
4
material facts. However, the State Defendants did not file any opposition to Plaintiff’s motion for
summary judgment. They also never presented any evidence of issues of material facts. It is
therefore surprising for this court to proceed to deny Plaintiff’s motion for summary judgment
yet the State Defendants presented no challenge to the motion.
It is Plaintiff’s contention that this Court erred when it denied Plaintiff’s motion for
summary judgment against the State Defendants, since the State Defendants did not file a single
response to Plaintiff’s motion. It flies in the face of justice for this Court to deny Plaintiff’s
motion, which is unchallenged. For the foresaid reasons, this Court should vacate and/or reverse
its decision denying Plaintiff’s motion for summary judgment.
CONCLUSION
In view of the above, Plaintiff respectfully requests this Court vacates its decisions
denying Plaintiff’s motions for default judgment and summary judgment, in the interest of
justice. Plaintiff further prays for any other order this court deems just.
Dated: _______________
___________________________
ASHMEEN MODIKHAN
5
CERTIFICATE OF MAILING
I, ASHMEEN MODIKHAN, certified on this ______day of ________ 2022, 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’ ADDRESSES]
___________________________
ASHMEEN MODIKHAN
At Legal writing experts, we would be happy to assist in preparing any legal document you need. We are international lawyers and attorneys with significant experience in legal drafting, Commercial-Corporate practice and consulting. In the last few years, we have successfully undertaken similar assignments for clients from different jurisdictions. If given this opportunity, The LegalPen will be able to prepare the legal document within the shortest time possible. You can send us your quick enquiry ( here )