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
RESPONSE TO DEFENDANTS’
AFFIRMATION IN OPPOSITION TO
PLAINTIFF’S MOTION FOR DEFAULT
JUDGMENT
COMES NOW Plaintiff ASHMEEN MODIKHAN, pro se, and files this Response to
Defendants’ Affirmation in Opposition to Motion for Default Judgment. In support thereof, the
Defendant states as follows:
BACKGROUND
Plaintiff commenced the instant action by filing a Complaint on or about April 6, 2022.
On or about April 18, 2022, Plaintiff filed the First Amended Complaint. However, as at the time
for filing this motion, Plaintiff has only received one response from the Defendants.
On July 27, 2022, Plaintiff filed a Motion for Default Judgment against the Defendants
on the ground that the Defendants had not filed an Answer to Plaintiff’s Complaint.
Defendants, through their attorney, filed the Affirmation in Opposition to Motion for
Default Judgment, and an Affirmation of Service thereof.
ARGUMENTS
i. Plaintiff properly served the summons and complaint upon the Defendants
The right to be informed of a civil lawsuit against you is enshrined in the United States
Constitution’s due process clause, which states that “no person can be deprived of life, liberty or
property without due process of law.” See U.S. CONST. amend. V. New York Civil Practice
Law and Rules (CPLR) §308 provides for the rules regarding service of legal documents in New
York. The said rules provide that personal service upon a natural person shall be made by
different methods including delivering the summons within the state to the person to be served;
delivering the summons within the state to a person of suitable age and discretion at the actual
place of business, dwelling place or usual place of abode plus mailing with very specific
requirements including time limits; delivering to an agent designated for service; the summons
may be affixed to the door of the actual place of business or dwelling plus mailing with some
very specific requirements; and in a different manner that has been approved by the court.
Besides, it suffices that the method used to effect service is one `reasonably calculated
under all the circumstances, to apprise the party of the pendency of the action. See Duffy v St.
Vincent’s Hosp, (1993, 1st Dept) 198 App Div 2d 31, 603 NYS2d 47, where a security guard
refused to accept a summons or allow it to be left at the security gate although he was aware of
the purpose of the process server, it was held sufficient to leave it in the general vicinity
including a nearby lawn.
Here, contrary to the Defendants’ assertions, Plaintiff duly served the Complaint and
Summons on the Defendants. Notably, Plaintiff attached a Certificate of Service dated April 18,
2022. As proof that Plaintiff used reasonably calculated means under the circumstances to effect
the service, the Summons and Complaint were served by email and by First Class USPS.
Plaintiff listed 36 addresses to which Plaintiff delivered the documents. Accordingly, Plaintiff
satisfied the requirements of CPLR §308.
ii. Defendants’ Motion to Dismiss was not timely
A motion to dismiss a claim may be asserted at any time before the responsive pleading
to that claim is due. See CPLR 3211(e). CPLR §320 prescribes the time periods for when a
responsive pleading must be served. This is generally 20 or 30 days from completion of service
(20 days when service is by personal delivery to the defendant within New York State, 30 days
all other times).
Here, Plaintiff filed the Complaint on April 18, 2022. Defendants had to file a response
on or before May 18, 2022. However, Defendants filed their Motion to Dismiss on or about July
14, 2022, which is way past the deadline for their responsive pleading. Plaintiff avers that this
Court should not condone such blatant disregard of the law. Defendants’ Motion to Dismiss must
be denied for being filed late.
iii. Plaintiff has a viable cause of action against Defendants; Qualified immunity
does not apply
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). Further, 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)); HaUnited 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).
"A government official is protected by qualified immunity insofar as the official’s
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known". See Sagendorf-Teal v County of Rensselaer, 100 F.3d
270, 276). "A right is clearly established if `[t]he contours of the right [are] sufficiently clear that
a reasonable official would understand that what he is doing violates that right’" See Baker v
Willett, 42 F Supp 2d 192, 197, quoting Anderson v Creighton, 483 US 635, 640; see Colao v
Mills, 39 AD3d 1048, 1050)
Here, the Defendants, in their roles as arbiters in the fore closure case, violated Plaintiff’s
due process rights. Plaintiff had pertinent evidence to challenge the illegal foreclosure. First, a
forged promissory note was submitted and was adopted by the court. The note missed pertinent
features from the original contract that Plaintiff entered. The attorneys in the foreclosure case
were also not registered with the National Attorney General’s Office as required by the Foreign
Agent Registration Act. Further, the lender failed to provide disclosures as required by the Truth
in Lending Act, Regulation Z, 12 CFR 226.23. The foreclosure was therefore illegal, as Plaintiff
averred in the Complaint. The Defendants had a duty to protect the law, and to promote justice.
However, Defendants failed to consider the glaring irregularities and violations of the law in the
foreclosure. Therefore, there is a valid cause of action against Defendants.
CONCLUSION
WHEREFORE, the foregoing considered, Plaintiff prays this Court denies Defendants’
Affirmation in Opposition to Motion for Default Judgment. Plaintiff also prays this Court grant
Plaintiff’s Motion for Default Judgment. Lastly, Plaintiff further prays for any other order this
court deems just.
Respectfully submitted,
Dated: _______________ By:
___________________________
ASHMEEN MODIKHAN.
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):
Melissa Ysaguirre, Esq.
Assistant Attorney General
28 Liberty Street
New York, New York 10005
212- 416-8553
Attorney for State Defendant
By:
___________________________
ASHMEEN MODIKHAN
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