Preview
INDEX NO. 206004/2022
NYSCEF DOC. NO. 152 RECEIVED NYSCEF 07/10/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
ponen nana nen nnn-n-n enna enna nena
YAN PING XU
Index No.: 206004/2022
Plaintiff,
(Mot. Seq. #4)
SUFFOLK COUNTY; SUFFOLK COUNTY SHERIFF
OFFICE, ERROL D. TOULON, JR., CHRISTOPHER
GUERCIO, STACEY McGOVERN, PETER KIRWAN,
SUE DESENA, BRIDGETTE SEDENFELDER, BILL P.
PARKAS, McCOYD PARKAS & RONAN LLP,
MICHELLE JABLONSKY and RAYMOND E. VAN
ZWIENEN,
Defendants.
wanna nanan nn nnn nnn nnn nnn nnn nnn nee
REPLY MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS
FURMAN KORNFELD & BRENNAN LLP
Attorneys for Defendants
BILL P. PARKAS, Eso. &
McCOYD PARKAS & RONAN, LLP
88 Pine Street, 32nd Floor
New York, New York 10005
Tel: (212) 867-4100
Fax: (212) 867-4118
FKB File No.: 321.036
By Counsel:
Rachel Aghassi, Esq.
Christopher D. Skoczen, Esq.
1 of 14
INDEX NO. 206004/2022
FILED: SUFFOLK COUNTY CLERK 07/10/2023 05:13 PM
NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 07/10/2023
TABLE OF CONTENTS
TABLE OF AUTHORITIES ul
PRELIMINARY STATEMENT
ARGUMENT
POINT I: PLAINTIFF FAILS TO SHOW THIS ACTION IS NOT BARRED BY
RES JUDICATA AND COLLATERAL ESTOPPEL
POINT II: PLAINTIFF FAILS TO REBUT THE DOCUMENTARY EVIDENCE
REFUTING THE COMPLAINT.
POINT III: PLAINTIFF FAILS TO SAVE HER FRIVOLOUS FRAUD CLAIM
AGAINST MPR.
POINT IV: PLAINTIFF PRESENTS NO VALID BASIS FOR HER
CONSTITUTIONAL CLAIMS
POINT V: THE COMPLAINT IS UNTIMELY
POINT VI: PLAINTIFF’S CLAIM FOR SANCTIONS HAS NO MERIT
POINT VII: MPR IS ENTITLED TO FEES, COSTS AND SANCTIONS.
CONCLUSION
WORD-COUNT CERTIFICATION 10
2 of 14
INDEX NO. 206004/2022
NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 07/10/2023
TABLE OF AUTHORITIES
CASES Page(s)
Bauhouse Grp. I, Inc. v. Kalikow,
190 A.D.3d 401 (1 Dept. 2021),
Drago v. Buonagurio,
46 N.Y.2d 778 (1978)
Graham v. Henderson,
89 F.3d 75 (2d Cir. 1996).. 12
Kaufman v. Eli Lilly & Co.,
65 N.Y.2d 449 (1985)
Matter of Van Zwienen,
202 A.D.3d 802 (2d Dept. 2022)
Miller v. Falco,
170 A.D.3d 707 (2d Dept. 2019)
Nicholas v. Goord,
430 F.3d 652 (2d Cir. 2005),
People ex rel. Spitzer v. Applied Card Systems, Inc.,
11 N.Y.3d 105 (2008)
Sykes v. Bank of America,
723 F.3d 399 (2d Cir. 2013). 11
U.S. Sec. & Futures Corp. v. Irvine,
2002 WL 34191506 (S.D.N.Y. 2002)
Village of Willowbrook v. Olech,
528 U.S. 562 (2000)....
Weintraub v. Phillips, Nizer, Benjamin, Krim, & Ballon,
172 A.D.2d 254 (1st Dept. 1991)
STATUTES
22 NYCRR § 130-1.1
42 U.S.C. § 1983
CPLR § 205(a)
ii
3 of 14
INDEX NO. 206004/2022
FILED: SUFFOLK COUNTY CLERK 07/10/2023 05:13 PM
NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 07/10/2023
CPLR § 3211 (a)(1)
CPLR § 3211(a)(5)
CPLR § 3211(a)(7)
Judiciary Law § 487
iii
4 of 14
INDEX NO. 206004/2022
NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 07/10/2023
PRELIMINARY STATEMENT
Defendants Bill P. Parkas, Esq. (“Attorney Parkas”) and McCoyd, Parkas & Ronan, LLP
(collectively “MPR”) submit this Reply Memorandum of Law in further support of MPR’s motion
to dismiss the Complaint of Plaintiff Yan Ping Xu (“Plaintiff”) with prejudice pursuant to CPLR
§ 3211(a)(1), § 3211(a)(5), and § 3211(a)(7), based on the documentary evidence, res judicata and
collateral estoppel, for failure to state a cause of action, and the statute of limitations. Plaintiff's
Complaint presents knowingly frivolous claims that the Surrogate’s Court orders that resulted in
her ejection were invalid, despite years of litigation in which Plaintiff repeatedly attempted to
avoid the strictures of her deceased husband’s trust, without success. The Surrogate’s Court and
the Appellate Division orders that Plaintiff contests again in this action bar Plaintiff's claims and
require the dismissal of this action. Plaintiff's other frivolous claims are rebutted by the
documentary evidence and do not state a valid cause of action. Moreover, Plaintiff failed to
commence this action within six months of dismissal of her federal complaint.
In opposition to the instant motion, Plaintiff not only repeats her outlandish and baseless
claims that the Surrogate’s Orders were wrongly decided, but uses her opposition to contest this
Court’s decisions dismissing Plaintiff's action as to the codefendants, Michelle Jablonsky and
Raymond E. Van Zwienen. The Court correctly determined in those decisions that Plaintiff's
action was not only barred by res judicata and collateral estoppel, but that Plaintiffs action is
clearly lacking any merit, such that defendants are entitled to fees and costs. Despite these
provident findings by the Court, Plaintiff presses further, attempting to use this motion practice as
a collateral attack on the Court’s prior orders. This is improper practice and warrants at a minimum
imposition of fees and costs against Plaintiff.
For the reasons set forth in MPR’s initial moving papers and the instant reply memorandum
5 of 14
INDEX NO. 206004/2022
NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 07/10/2023
of law, MPR’s motion should be granted with prejudice and costs imposed against Plaintiff.
ARGUMENT
POINT I
PLAINTIFF FAILS TO SHOW THIS ACTION IS NOT BARRED
BY RES JUDICATA AND COLLATERAL ESTOPPEL
Plaintiff's Complaint must be dismissed because Plaintiff's allegations are clearly barred
by res judicata and collateral estoppel. Plaintiff alleges that she had a right to possession of the
property at issue, and that the Surrogate’s Court wrongly determined that Raymond E. Van
Zwienen (“Van Zwienen”) was entitled to recovery of the property. These issues were thoroughly
litigated and adjudicated previously, precluding Plaintiff's claims.
The Surrogate’s Court orders from the underlying proceedings leading to Plaintiff's
ejection from the property at issue conclusively decided the issues Plaintiff attempts to raise in this
action. The Surrogate’s Court held that Van Zwienen was entitled to possession of the property at
issue (Ex. E).! The Surrogate’s Court’s subsequent order held that Van Zwienen and MPR had
authority to petition for recovery of the property at issue, denied Plaintiff's motion to dismiss the
petition, and held that Plaintiff was required to vacate the property (Ex. F). Plaintiff contested
those orders on appeal, but the Appellate Division ruled against Plaintiff. See Matter of Van
Zwienen, 202 A.D.3d 802 (2d Dept. 2022). Plaintiff's claims that the Surrogate’s Court orders
were not final and do not have preclusive effect are therefore wholly erroneous.
Plaintiff tries to evade the preclusive effect of these rulings by claiming that MPR was not
a party in the underlying proceedings. However, collateral estoppel applies where the party to be
precluded from re-litigating the issue had a full and fair opportunity to litigate the issue in the prior
' References are to the exhibits attached to the Affirmation of Christopher D. Skoczen, Esq. in support of the instant
motion.
6 of 14
INDEX NO. 206004/2022
NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 07/10/2023
action. Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 455-56 (1985). Plaintiff had such an
opportunity. Moreover, MPR represented Van Zwienen in the Surrogate’s Court proceedings, and
therefore was in privity with a party to those proceedings. Res judicata and collateral estoppel are
applicable to parties that were in privity with parties to the prior, binding proceeding. See People
ex rel. Spitzer v. Applied Card Systems, Inc., 11 N.Y.3d 105, 122 (2008).
Additionally, Plaintiff claims that her new claim, that Van Zwienen and MPR committed
fraud by representing that Van Zwienen was the Successor Trustee, were not decided by the
Surrogate’s Court, and therefore are not barred. Plaintiff is in error, as the claim at the base of
Plaintiff's fraud cause of action, that Van Zwienen was not the Successor Trustee, was fully
litigated in the Surrogate’s Court. Plaintiff now only changes the name of her claim in that regard,
but the Surrogate’s Court adjudicated Plaintiff's claim that Van Zwienen was not the bona fide
Successor Trustee. Res judicata applies to all claims arising out of the same transaction, even if
based upon different theories. See Bauhouse Grp. I, Inc. v. Kalikow, 190 A.D.3d 401 (1* Dept.
2021).
Plaintiff also argues that the order holding that Van Zwienen was entitled to possession of
the property does not preclude this action because the order was granted on default. This claim
has no merit. A default judgment has the same res judicata effect as a judgment on the merits.
U.S. Sec. & Futures Corp. v. Irvine, 2002 WL 34191506 (S.D.N.Y. 2002). Moreover, Plaintiff
cannot avoid collateral estoppel on the grounds of default where the default at issue was due solely
to Plaintiff's misconduct in the prior proceeding. See Miller v. Falco, 170 A.D.3d 707, 709 (2d
Dept. 2019).
Plaintiff seeks to relitigate her claims in a different forum after losing in other forums, and
now wrongfully attempts to use this Court as an appellate forum to overturn Surrogate’s Court
7 of 14
INDEX NO. 206004/2022
NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 07/10/2023
orders. This Court has already held that Plaintiff's claims are barred by res judicata and collateral
estoppel. See Dkt. No.’s 120, 122. The Court’s findings in those Decisions apply as well to
Plaintiff's action against MPR. Id.
Plaintiff presents no valid basis for avoiding the res judicata and collateral estoppel effects
of the prior rulings, requiring dismissal of the instant action.
POINT IT
PLAINTIFF FAILS TO REBUT
THE DOCUMENTARY EVIDENCE REFUTING THE COMPLAINT
The documentary evidence flatly rebuts Plaintiff's claim that Van Zwienen was not the
Successor Trustee or that MPR and Van Zwienen made any false representations to the Surrogate’s
Court in that regard. These very issues were raised in the Surrogate’s Court, and the Court directly
addressed the issues, finding in favor of Van Zwienen and holding that no further evidence of
authority for Van Zwienen and MPR was necessary. (Ex. F, p. 5).
Plaintiff claims in opposition to the instant motion that the documentary evidence actually
supports Plaintiffs claim, based on nonsensical references to the Surrogate’s Court Orders that
fail to support her claim. In this regard, Plaintiff claims that the Orders only reflect that Van
Zwienen and MPR “successfully deceived Xu and the Surrogate...” See Dkt. No. 125, p. 9.
Plaintiff also claims that the April Order only supported a finding that Van Zwienen was a
fiduciary, not the Successor Trustee. Review of the April Order indicates that the Surrogate’s
Court simply rejected yet another one of Plaintiff's claims, in which she contested Van Zwienen’s
fiduciary status. (Ex. F, p. 9).
Again, Plaintiff attempts to rebut the holdings from the Surrogate’s Court proceedings,
claiming that the Orders were not proper. Plaintiff makes reference to various SCPA statutes and
Surrogate’s Court precedents to attempt to raise an issue of the validity of the Surrogate’s Court
8 of 14
INDEX NO. 206004/2022
NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 07/10/2023
Orders, but the legal effect of those Orders was already adjudicated in the Surrogate’s Court and
Appellate Division, and the Orders clearly rebut Plaintiff's claims in this action. (Ex.’s E, F, G,
H, I, J, K, L). As such, Plaintiff's action has no merit and must be dismissed.
POINT IIT
PLAINTIFF FAILS TO SAVE HER FRIVOLOUS FRAUD CLAIM AGAINST MPR
Plaintiff fails to present any facts or allegations sufficient to support a valid claim of fraud
or violation of Judiciary Law § 487. Rather, Plaintiff makes such allegation based solely on
conclusory claims that MPR’s representations to the Surrogate’s Court were false. These
conclusory claims are flatly rebutted by the Surrogate’s Court Orders (Ex.’s E, F). As such,
Plaintiff does not state a cause of action, as Plaintiff does not sufficiently plead that MPR made
any misrepresentation, since Plaintiff does not plead any facts indicating that MPR’s statements
were false.
Plaintiff tries to support her claims of fraud with further conclusory statements, such as
that the representations by MPR to the Surrogate’s Court lacked authority, or that MPR ignored
Plaintiff's claim that the Decedent designated Xu as the successor trustee. Not only are these
allegations conclusory, but they are refuted by the documentary evidence. (Ex.’s E, F).
Further attempting to support the fraud claim, Plaintiff claims that MPR violated the Rules
of Professional Conduct, without providing any details as to the purported violation. Even were
there any valid basis for such claim, which is denied, a violation of the Rules of Professional
Conduct does not provide an avenue of relief in civil litigation. See Weintraub v. Phillips, Nizer,
Benjamin, Krim, & Ballon, 172 A.D.2d 254 (1st Dept. 1991) citing Drago v. Buonagurio, 46
N.Y.2d 778 (1978).
9 of 14
INDEX NO. 206004/2022
NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 07/10/2023
Plaintiff’s fraud claim relies on the conclusory allegation that Van Zwienen was not the
proper Successor Trustee. As there is no valid basis for such claim, Plaintiff's fraud claims have
no merit and must be dismissed.
POINT IV
PLAINTIFF PRESENTS NO VALID BASIS FOR HER CONSTITUTIONAL CLAIMS
Plaintiffs Complaint makes vague allusions to violations of Plaintiff's civil rights, arising
from her ejectment from the property. Plaintiff attempts in opposition to the instant motion to
support these claims with further conclusory allegations, claiming that MPR engaged in civil rights
violations or housing discrimination because MPR represented Van Zwienen in Surrogate’s Court.
These claims have no merit whatsoever, and Plaintiffs opposition does nothing to address the
pleading deficiencies.
Plaintiff attempts to support her claims of violation of 42 U.S.C. § 1983 by claiming that
MPR obtained the Surrogate’s Orders that resulted in her ejectment. However, in doing so, MPR
was not acting in concert with any governmental official or entity, but rather was representing its
client in judicial proceedings. A valid claim of violation of § 1983 will not lie unless the private
actor was acting in concert with a state representative or entity. See 42 U.S.C. § 1983. These facts
therefore do not support a claim of violation of § 1983. See Nicholas v. Goord, 430 F.3d 652, 656,
fn. 7 (2d Cir. 2005).
Plaintiff also attempts to support a claim of housing discrimination against MPR, by
claiming that MPR had “intent” to discriminate against Plaintiff. Plaintiff does not plead facts
indicating that MPR had any involvement with Plaintiff's housing, much less that MPR had any
intent to discriminate in any way against Plaintiff. Moreover, Plaintiff had no ownership interest
in the property, and therefore had no entitlement to housing there under any circumstances. (Ex.
10 of 14
INDEX NO. 206004/2022
NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 07/10/2023
F). Further, to establish a valid claim under the Equal Protection Clause, Plaintiff must show that
she has been “intentionally treated differently from others similarly situated.” See Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Plaintiff cannot show any facts indicating that
MPR took any action based on Plaintiff's race or treated her differently than any other adversary.
Plaintiff resorts, as with all of her claims, to her allegation that Van Zwienen was the
“fraudulent” Successor Trustee. Not only was this issue adjudicated against Plaintiff in
Surrogate’s Court (Ex.’s E, F), but it has no bearing on Plaintiff's purported Constitutional claims.
Plaintiff has not stated valid claims for violations of her Constitutional rights.
POINT V
THE COMPLAINT IS UNTIMELY
Plaintiff failed to file her claim within six months of the dismissal of her federal action (Ex.
T). As such, her action must be dismissed as untimely under CPLR § 205(a). N.Y. Civ. Prac.
L.&R. § 205(a). Plaintiff argues that CPLR § 205(a) is a tolling provision and not a statute of
limitations. However, the statute holds that an action in state court must be commenced within six
months of the dismissal of an initial federal action. As such, Plaintiffs failure to commence the
action with six months failed to save her claims. This action is therefore untimely and must be
dismissed. Id.
POINT VI
PLAINTIFF’S CLAIM FOR SANCTIONS HAS NO MERIT
Plaintiff makes a nonsensical request for sanctions against MPR, based on her assertion
that MPR submitted the instant motion to delay the prosecution of this action. Plaintiff also seeks
sanctions because MPR relies on the claim that Van Zwienen was the bona fide Successor Trustee.
11 of 14
INDEX NO. 206004/2022
NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 07/10/2023
22 NYCRR § 130- 1.1 provides that the Court has discretion to award fees and costs to a
party or attorney in a civil action for the frivolous conduct of an adversary and impose sanctions
against the offending party. 22 NYCRR § 130- 1.1. The statute provides that “ conduct
is frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable
argument for an extension, modification or reversal of existing law; [or] (2) it is undertaken
primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure
another.” 22 NYCRR § 130- 1.1(c).
Plaintiff's action has no merit in law and is therefore frivolous. As such, Plaintiff cannot
show that MPR’s conduct was undertaken to delay or prolong the resolution of this litigation.
Rather, the purpose of the motion to dismiss, pursuant to CPLR § 3211, is to avoid further delay
or prolongation of this action. Plaintiff has no basis for her request for sanctions. The request
must therefore be denied.
POINT VII
MPR IS ENTITLED TO FEES, COSTS AND SANCTIONS
In bringing the instant action, Plaintiff disregarded an Order of the Surrogate’s Court that
required Plaintiff to obtain leave of Court before proceeding with further actions. (Ex. L). As such,
Plaintiff proceeded with this action with full knowledge that not only do her claims lack merit, but
that Plaintiff was proceeding without obtaining leave of Court. Plaintiff presents no defense of
her conduct, and further proceeds with opposition to the instant motion with full knowledge that
this Court has already held Plaintiff's claims are barred by res judicata and collateral estoppel. See
Dkt. No.’s 120, 122.
As such, Plaintiffs conduct is inexcusable and requires an award of legal fees, costs and
sanctions from Plaintiff. MPR therefore reiterates its request that the Court issue an Order granting
12 of 14
INDEX NO. 206004/2022
NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 07/10/2023
a Sanction against Plaintiff in favor of MPR and prohibiting Plaintiff from filing further
submissions in this Court without written permission from the Court.
CONCLUSION
MPR respectfully requests that the Court dismiss the instant Complaint in its entirety, with
prejudice, and award fees and costs to MPR, together with such other and further relief as the Court
deems just and proper.
Dated: New York, New York
July 10, 2023
Respectfully Submitted,
FURMAN KORNFELD & BRENNAN LLP
By /s/_ Christopher D. Skoczen
Rachel Aghassi, Esq.
Christopher D. Skoczen, Esq.
Attorneys for Defendants
McCoyd Parkas & Ronan LLP and
Bill P. Parkas
88 Pine Street, 32nd Floor
New York, New York 10005
Phone No.: (212) 867-4100
FKB File No.: 321.036
13 of 14
INDEX NO. 206004/2022
NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 07/10/2023
WORD-COUNT CERTIFICATION
In accordance with § 202.8-b of the Uniform Rules of the Supreme Court and the County
Court, I certify that this document was prepared on a computer using Microsoft Word for Office
365 in 12-point, Times New Roman font; that the word count of this Reply Memorandum of Law,
as calculated in accordance with the Rules, by the computer processing system used to prepare this
brief, is 2,438, and that this document thus complies with the word-count limit in the Uniform
Rules.
/s/_ Christopher D. Skoczen
10
14 of 14
Preview
INDEX NO. 206004/2022 NYSCEF DOC. NO. 152 RECEIVED NYSCEF 07/10/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ponen nana nen nnn-n-n enna enna nena YAN PING XU Index No.: 206004/2022 Plaintiff, (Mot. Seq. #4) SUFFOLK COUNTY; SUFFOLK COUNTY SHERIFF OFFICE, ERROL D. TOULON, JR., CHRISTOPHER GUERCIO, STACEY McGOVERN, PETER KIRWAN, SUE DESENA, BRIDGETTE SEDENFELDER, BILL P. PARKAS, McCOYD PARKAS & RONAN LLP, MICHELLE JABLONSKY and RAYMOND E. VAN ZWIENEN, Defendants. wanna nanan nn nnn nnn nnn nnn nnn nnn nee REPLY MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS FURMAN KORNFELD & BRENNAN LLP Attorneys for Defendants BILL P. PARKAS, Eso. & McCOYD PARKAS & RONAN, LLP 88 Pine Street, 32nd Floor New York, New York 10005 Tel: (212) 867-4100 Fax: (212) 867-4118 FKB File No.: 321.036 By Counsel: Rachel Aghassi, Esq. Christopher D. Skoczen, Esq. 1 of 14 INDEX NO. 206004/2022 FILED: SUFFOLK COUNTY CLERK 07/10/2023 05:13 PM NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 07/10/2023 TABLE OF CONTENTS TABLE OF AUTHORITIES ul PRELIMINARY STATEMENT ARGUMENT POINT I: PLAINTIFF FAILS TO SHOW THIS ACTION IS NOT BARRED BY RES JUDICATA AND COLLATERAL ESTOPPEL POINT II: PLAINTIFF FAILS TO REBUT THE DOCUMENTARY EVIDENCE REFUTING THE COMPLAINT. POINT III: PLAINTIFF FAILS TO SAVE HER FRIVOLOUS FRAUD CLAIM AGAINST MPR. POINT IV: PLAINTIFF PRESENTS NO VALID BASIS FOR HER CONSTITUTIONAL CLAIMS POINT V: THE COMPLAINT IS UNTIMELY POINT VI: PLAINTIFF’S CLAIM FOR SANCTIONS HAS NO MERIT POINT VII: MPR IS ENTITLED TO FEES, COSTS AND SANCTIONS. CONCLUSION WORD-COUNT CERTIFICATION 10 2 of 14 INDEX NO. 206004/2022 NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 07/10/2023 TABLE OF AUTHORITIES CASES Page(s) Bauhouse Grp. I, Inc. v. Kalikow, 190 A.D.3d 401 (1 Dept. 2021), Drago v. Buonagurio, 46 N.Y.2d 778 (1978) Graham v. Henderson, 89 F.3d 75 (2d Cir. 1996).. 12 Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449 (1985) Matter of Van Zwienen, 202 A.D.3d 802 (2d Dept. 2022) Miller v. Falco, 170 A.D.3d 707 (2d Dept. 2019) Nicholas v. Goord, 430 F.3d 652 (2d Cir. 2005), People ex rel. Spitzer v. Applied Card Systems, Inc., 11 N.Y.3d 105 (2008) Sykes v. Bank of America, 723 F.3d 399 (2d Cir. 2013). 11 U.S. Sec. & Futures Corp. v. Irvine, 2002 WL 34191506 (S.D.N.Y. 2002) Village of Willowbrook v. Olech, 528 U.S. 562 (2000).... Weintraub v. Phillips, Nizer, Benjamin, Krim, & Ballon, 172 A.D.2d 254 (1st Dept. 1991) STATUTES 22 NYCRR § 130-1.1 42 U.S.C. § 1983 CPLR § 205(a) ii 3 of 14 INDEX NO. 206004/2022 FILED: SUFFOLK COUNTY CLERK 07/10/2023 05:13 PM NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 07/10/2023 CPLR § 3211 (a)(1) CPLR § 3211(a)(5) CPLR § 3211(a)(7) Judiciary Law § 487 iii 4 of 14 INDEX NO. 206004/2022 NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 07/10/2023 PRELIMINARY STATEMENT Defendants Bill P. Parkas, Esq. (“Attorney Parkas”) and McCoyd, Parkas & Ronan, LLP (collectively “MPR”) submit this Reply Memorandum of Law in further support of MPR’s motion to dismiss the Complaint of Plaintiff Yan Ping Xu (“Plaintiff”) with prejudice pursuant to CPLR § 3211(a)(1), § 3211(a)(5), and § 3211(a)(7), based on the documentary evidence, res judicata and collateral estoppel, for failure to state a cause of action, and the statute of limitations. Plaintiff's Complaint presents knowingly frivolous claims that the Surrogate’s Court orders that resulted in her ejection were invalid, despite years of litigation in which Plaintiff repeatedly attempted to avoid the strictures of her deceased husband’s trust, without success. The Surrogate’s Court and the Appellate Division orders that Plaintiff contests again in this action bar Plaintiff's claims and require the dismissal of this action. Plaintiff's other frivolous claims are rebutted by the documentary evidence and do not state a valid cause of action. Moreover, Plaintiff failed to commence this action within six months of dismissal of her federal complaint. In opposition to the instant motion, Plaintiff not only repeats her outlandish and baseless claims that the Surrogate’s Orders were wrongly decided, but uses her opposition to contest this Court’s decisions dismissing Plaintiff's action as to the codefendants, Michelle Jablonsky and Raymond E. Van Zwienen. The Court correctly determined in those decisions that Plaintiff's action was not only barred by res judicata and collateral estoppel, but that Plaintiffs action is clearly lacking any merit, such that defendants are entitled to fees and costs. Despite these provident findings by the Court, Plaintiff presses further, attempting to use this motion practice as a collateral attack on the Court’s prior orders. This is improper practice and warrants at a minimum imposition of fees and costs against Plaintiff. For the reasons set forth in MPR’s initial moving papers and the instant reply memorandum 5 of 14 INDEX NO. 206004/2022 NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 07/10/2023 of law, MPR’s motion should be granted with prejudice and costs imposed against Plaintiff. ARGUMENT POINT I PLAINTIFF FAILS TO SHOW THIS ACTION IS NOT BARRED BY RES JUDICATA AND COLLATERAL ESTOPPEL Plaintiff's Complaint must be dismissed because Plaintiff's allegations are clearly barred by res judicata and collateral estoppel. Plaintiff alleges that she had a right to possession of the property at issue, and that the Surrogate’s Court wrongly determined that Raymond E. Van Zwienen (“Van Zwienen”) was entitled to recovery of the property. These issues were thoroughly litigated and adjudicated previously, precluding Plaintiff's claims. The Surrogate’s Court orders from the underlying proceedings leading to Plaintiff's ejection from the property at issue conclusively decided the issues Plaintiff attempts to raise in this action. The Surrogate’s Court held that Van Zwienen was entitled to possession of the property at issue (Ex. E).! The Surrogate’s Court’s subsequent order held that Van Zwienen and MPR had authority to petition for recovery of the property at issue, denied Plaintiff's motion to dismiss the petition, and held that Plaintiff was required to vacate the property (Ex. F). Plaintiff contested those orders on appeal, but the Appellate Division ruled against Plaintiff. See Matter of Van Zwienen, 202 A.D.3d 802 (2d Dept. 2022). Plaintiff's claims that the Surrogate’s Court orders were not final and do not have preclusive effect are therefore wholly erroneous. Plaintiff tries to evade the preclusive effect of these rulings by claiming that MPR was not a party in the underlying proceedings. However, collateral estoppel applies where the party to be precluded from re-litigating the issue had a full and fair opportunity to litigate the issue in the prior ' References are to the exhibits attached to the Affirmation of Christopher D. Skoczen, Esq. in support of the instant motion. 6 of 14 INDEX NO. 206004/2022 NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 07/10/2023 action. Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 455-56 (1985). Plaintiff had such an opportunity. Moreover, MPR represented Van Zwienen in the Surrogate’s Court proceedings, and therefore was in privity with a party to those proceedings. Res judicata and collateral estoppel are applicable to parties that were in privity with parties to the prior, binding proceeding. See People ex rel. Spitzer v. Applied Card Systems, Inc., 11 N.Y.3d 105, 122 (2008). Additionally, Plaintiff claims that her new claim, that Van Zwienen and MPR committed fraud by representing that Van Zwienen was the Successor Trustee, were not decided by the Surrogate’s Court, and therefore are not barred. Plaintiff is in error, as the claim at the base of Plaintiff's fraud cause of action, that Van Zwienen was not the Successor Trustee, was fully litigated in the Surrogate’s Court. Plaintiff now only changes the name of her claim in that regard, but the Surrogate’s Court adjudicated Plaintiff's claim that Van Zwienen was not the bona fide Successor Trustee. Res judicata applies to all claims arising out of the same transaction, even if based upon different theories. See Bauhouse Grp. I, Inc. v. Kalikow, 190 A.D.3d 401 (1* Dept. 2021). Plaintiff also argues that the order holding that Van Zwienen was entitled to possession of the property does not preclude this action because the order was granted on default. This claim has no merit. A default judgment has the same res judicata effect as a judgment on the merits. U.S. Sec. & Futures Corp. v. Irvine, 2002 WL 34191506 (S.D.N.Y. 2002). Moreover, Plaintiff cannot avoid collateral estoppel on the grounds of default where the default at issue was due solely to Plaintiff's misconduct in the prior proceeding. See Miller v. Falco, 170 A.D.3d 707, 709 (2d Dept. 2019). Plaintiff seeks to relitigate her claims in a different forum after losing in other forums, and now wrongfully attempts to use this Court as an appellate forum to overturn Surrogate’s Court 7 of 14 INDEX NO. 206004/2022 NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 07/10/2023 orders. This Court has already held that Plaintiff's claims are barred by res judicata and collateral estoppel. See Dkt. No.’s 120, 122. The Court’s findings in those Decisions apply as well to Plaintiff's action against MPR. Id. Plaintiff presents no valid basis for avoiding the res judicata and collateral estoppel effects of the prior rulings, requiring dismissal of the instant action. POINT IT PLAINTIFF FAILS TO REBUT THE DOCUMENTARY EVIDENCE REFUTING THE COMPLAINT The documentary evidence flatly rebuts Plaintiff's claim that Van Zwienen was not the Successor Trustee or that MPR and Van Zwienen made any false representations to the Surrogate’s Court in that regard. These very issues were raised in the Surrogate’s Court, and the Court directly addressed the issues, finding in favor of Van Zwienen and holding that no further evidence of authority for Van Zwienen and MPR was necessary. (Ex. F, p. 5). Plaintiff claims in opposition to the instant motion that the documentary evidence actually supports Plaintiffs claim, based on nonsensical references to the Surrogate’s Court Orders that fail to support her claim. In this regard, Plaintiff claims that the Orders only reflect that Van Zwienen and MPR “successfully deceived Xu and the Surrogate...” See Dkt. No. 125, p. 9. Plaintiff also claims that the April Order only supported a finding that Van Zwienen was a fiduciary, not the Successor Trustee. Review of the April Order indicates that the Surrogate’s Court simply rejected yet another one of Plaintiff's claims, in which she contested Van Zwienen’s fiduciary status. (Ex. F, p. 9). Again, Plaintiff attempts to rebut the holdings from the Surrogate’s Court proceedings, claiming that the Orders were not proper. Plaintiff makes reference to various SCPA statutes and Surrogate’s Court precedents to attempt to raise an issue of the validity of the Surrogate’s Court 8 of 14 INDEX NO. 206004/2022 NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 07/10/2023 Orders, but the legal effect of those Orders was already adjudicated in the Surrogate’s Court and Appellate Division, and the Orders clearly rebut Plaintiff's claims in this action. (Ex.’s E, F, G, H, I, J, K, L). As such, Plaintiff's action has no merit and must be dismissed. POINT IIT PLAINTIFF FAILS TO SAVE HER FRIVOLOUS FRAUD CLAIM AGAINST MPR Plaintiff fails to present any facts or allegations sufficient to support a valid claim of fraud or violation of Judiciary Law § 487. Rather, Plaintiff makes such allegation based solely on conclusory claims that MPR’s representations to the Surrogate’s Court were false. These conclusory claims are flatly rebutted by the Surrogate’s Court Orders (Ex.’s E, F). As such, Plaintiff does not state a cause of action, as Plaintiff does not sufficiently plead that MPR made any misrepresentation, since Plaintiff does not plead any facts indicating that MPR’s statements were false. Plaintiff tries to support her claims of fraud with further conclusory statements, such as that the representations by MPR to the Surrogate’s Court lacked authority, or that MPR ignored Plaintiff's claim that the Decedent designated Xu as the successor trustee. Not only are these allegations conclusory, but they are refuted by the documentary evidence. (Ex.’s E, F). Further attempting to support the fraud claim, Plaintiff claims that MPR violated the Rules of Professional Conduct, without providing any details as to the purported violation. Even were there any valid basis for such claim, which is denied, a violation of the Rules of Professional Conduct does not provide an avenue of relief in civil litigation. See Weintraub v. Phillips, Nizer, Benjamin, Krim, & Ballon, 172 A.D.2d 254 (1st Dept. 1991) citing Drago v. Buonagurio, 46 N.Y.2d 778 (1978). 9 of 14 INDEX NO. 206004/2022 NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 07/10/2023 Plaintiff’s fraud claim relies on the conclusory allegation that Van Zwienen was not the proper Successor Trustee. As there is no valid basis for such claim, Plaintiff's fraud claims have no merit and must be dismissed. POINT IV PLAINTIFF PRESENTS NO VALID BASIS FOR HER CONSTITUTIONAL CLAIMS Plaintiffs Complaint makes vague allusions to violations of Plaintiff's civil rights, arising from her ejectment from the property. Plaintiff attempts in opposition to the instant motion to support these claims with further conclusory allegations, claiming that MPR engaged in civil rights violations or housing discrimination because MPR represented Van Zwienen in Surrogate’s Court. These claims have no merit whatsoever, and Plaintiffs opposition does nothing to address the pleading deficiencies. Plaintiff attempts to support her claims of violation of 42 U.S.C. § 1983 by claiming that MPR obtained the Surrogate’s Orders that resulted in her ejectment. However, in doing so, MPR was not acting in concert with any governmental official or entity, but rather was representing its client in judicial proceedings. A valid claim of violation of § 1983 will not lie unless the private actor was acting in concert with a state representative or entity. See 42 U.S.C. § 1983. These facts therefore do not support a claim of violation of § 1983. See Nicholas v. Goord, 430 F.3d 652, 656, fn. 7 (2d Cir. 2005). Plaintiff also attempts to support a claim of housing discrimination against MPR, by claiming that MPR had “intent” to discriminate against Plaintiff. Plaintiff does not plead facts indicating that MPR had any involvement with Plaintiff's housing, much less that MPR had any intent to discriminate in any way against Plaintiff. Moreover, Plaintiff had no ownership interest in the property, and therefore had no entitlement to housing there under any circumstances. (Ex. 10 of 14 INDEX NO. 206004/2022 NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 07/10/2023 F). Further, to establish a valid claim under the Equal Protection Clause, Plaintiff must show that she has been “intentionally treated differently from others similarly situated.” See Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Plaintiff cannot show any facts indicating that MPR took any action based on Plaintiff's race or treated her differently than any other adversary. Plaintiff resorts, as with all of her claims, to her allegation that Van Zwienen was the “fraudulent” Successor Trustee. Not only was this issue adjudicated against Plaintiff in Surrogate’s Court (Ex.’s E, F), but it has no bearing on Plaintiff's purported Constitutional claims. Plaintiff has not stated valid claims for violations of her Constitutional rights. POINT V THE COMPLAINT IS UNTIMELY Plaintiff failed to file her claim within six months of the dismissal of her federal action (Ex. T). As such, her action must be dismissed as untimely under CPLR § 205(a). N.Y. Civ. Prac. L.&R. § 205(a). Plaintiff argues that CPLR § 205(a) is a tolling provision and not a statute of limitations. However, the statute holds that an action in state court must be commenced within six months of the dismissal of an initial federal action. As such, Plaintiffs failure to commence the action with six months failed to save her claims. This action is therefore untimely and must be dismissed. Id. POINT VI PLAINTIFF’S CLAIM FOR SANCTIONS HAS NO MERIT Plaintiff makes a nonsensical request for sanctions against MPR, based on her assertion that MPR submitted the instant motion to delay the prosecution of this action. Plaintiff also seeks sanctions because MPR relies on the claim that Van Zwienen was the bona fide Successor Trustee. 11 of 14 INDEX NO. 206004/2022 NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 07/10/2023 22 NYCRR § 130- 1.1 provides that the Court has discretion to award fees and costs to a party or attorney in a civil action for the frivolous conduct of an adversary and impose sanctions against the offending party. 22 NYCRR § 130- 1.1. The statute provides that “ conduct is frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; [or] (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another.” 22 NYCRR § 130- 1.1(c). Plaintiff's action has no merit in law and is therefore frivolous. As such, Plaintiff cannot show that MPR’s conduct was undertaken to delay or prolong the resolution of this litigation. Rather, the purpose of the motion to dismiss, pursuant to CPLR § 3211, is to avoid further delay or prolongation of this action. Plaintiff has no basis for her request for sanctions. The request must therefore be denied. POINT VII MPR IS ENTITLED TO FEES, COSTS AND SANCTIONS In bringing the instant action, Plaintiff disregarded an Order of the Surrogate’s Court that required Plaintiff to obtain leave of Court before proceeding with further actions. (Ex. L). As such, Plaintiff proceeded with this action with full knowledge that not only do her claims lack merit, but that Plaintiff was proceeding without obtaining leave of Court. Plaintiff presents no defense of her conduct, and further proceeds with opposition to the instant motion with full knowledge that this Court has already held Plaintiff's claims are barred by res judicata and collateral estoppel. See Dkt. No.’s 120, 122. As such, Plaintiffs conduct is inexcusable and requires an award of legal fees, costs and sanctions from Plaintiff. MPR therefore reiterates its request that the Court issue an Order granting 12 of 14 INDEX NO. 206004/2022 NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 07/10/2023 a Sanction against Plaintiff in favor of MPR and prohibiting Plaintiff from filing further submissions in this Court without written permission from the Court. CONCLUSION MPR respectfully requests that the Court dismiss the instant Complaint in its entirety, with prejudice, and award fees and costs to MPR, together with such other and further relief as the Court deems just and proper. Dated: New York, New York July 10, 2023 Respectfully Submitted, FURMAN KORNFELD & BRENNAN LLP By /s/_ Christopher D. Skoczen Rachel Aghassi, Esq. Christopher D. Skoczen, Esq. Attorneys for Defendants McCoyd Parkas & Ronan LLP and Bill P. Parkas 88 Pine Street, 32nd Floor New York, New York 10005 Phone No.: (212) 867-4100 FKB File No.: 321.036 13 of 14 INDEX NO. 206004/2022 NYSCEF DOC. NO. 152 RECEIVED NYSCEF: 07/10/2023 WORD-COUNT CERTIFICATION In accordance with § 202.8-b of the Uniform Rules of the Supreme Court and the County Court, I certify that this document was prepared on a computer using Microsoft Word for Office 365 in 12-point, Times New Roman font; that the word count of this Reply Memorandum of Law, as calculated in accordance with the Rules, by the computer processing system used to prepare this brief, is 2,438, and that this document thus complies with the word-count limit in the Uniform Rules. /s/_ Christopher D. Skoczen 10 14 of 14