Preview
FILED: SUFFOLK COUNTY CLERK 07/05/2023 08:40 PM INDEX NO. 206004/2022
NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 07/05/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
----------------------------------------------------------------------X
YANPING XU,
PLAINTIFF, Index: 206004/2022
v.
IAS Judge Assigned
SUFFOLK COUNTY, et al., Hon. Paul M. Hensley
DEFENDANTS.
----------------------------------------------------------------------X Mot. # 004
PLAINTIFF’S MEMORANDUM OF LAW
IN OPPOSITION TO THE MOTION OF DEFENDANTS
BILL P. PARKAS, MCCOYD, PARKAS & RONAN LLP
Yanping Xu, M.S.
Pro Se Plaintiff
POBox 376
Islip, NY 11706
646-894-6974
yp_xu2000@yahoo.com
Dated:7/5/2023
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TABLE OF CONTENTS
TABLE OF CONTENTS ............................................................................................................ i
TABLE OF AUTHORITY .......................................................................................................iii
PRELIMINARY ........................................................................................................................ 1
STATEMENT OF RELEVANT FACTS .................................................................................. 1
ARGUMENT ............................................................................................................................. 2
I. The Standard of Review............................................................................................... 2
II. The Complaint is Timely ......................................................................................... 2
III. The Preclusion Doctrine Is Inapplicable ................................................................. 3
i. Fairness and Flexible Controlling ........................................................................ 4
ii. The Surrogate’s Orders are Invalid --- Valid Judgment Requirement ................. 4
iii. The Surrogate’s Orders Are Not Final --- Finality Requirement ..................... 5
iv. MPR Is Neither a Party Nor In Privity In The Surrogate --- Party
Requirement ............................................................................................................... 6
v. Issues Decided by Default --- Not a Full and Fair Opportunity to Litigate ......... 7
vi. Issue of the Fraudulent Successor Trustee Not Raised and Decided -- ........... 7
Identical Issue Requirement ....................................................................................... 7
vii. Issues Decided on the Ground of the Fraud Lacking Standing ........................ 8
viii. The Surrogate Is A Limited Judiciary Forum .................................................. 9
IV. The Documentary Evidence Supports Xu’s Claim.................................................. 9
V. Xu Sufficiently States a Cause of Action .............................................................. 12
A. Fraud Claim .................................................................................................... 12
B. Constitutional Claims ..................................................................................... 14
C. Housing Discrimination Claims ..................................................................... 15
VI. MPR Is Entitled to Be Sanctioned Including Monetary Sanctions ....................... 18
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CONCLUSION ........................................................................................................................ 19
EXHIBITS ............................................................................................................................... 20
APPENDIX .............................................................................................................................. 21
CERTIFICATE OF COMPLIANCE ....................................................................................... 22
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TABLE OF AUTHORITY
Cases
Arizona v. California,
120 S.Ct. 2304, 2318 (2000),
supplemented on other grounds, 121 S.Ct. 292 (2000) 7
Boykin v. KeyCorp,
521 F.3d 202, 216 (2d. Cir. 2008) 2, 14, 15
Buechel v. Bain,
97 N.Y.2d 295(2001) 2
Coregis Ins. Co. v. Lewis, et.al,
2006 U.S. Dist. LEXIS 55326 (E.D.N.Y. 2006) 12
D. Penguin Bros. Ltd. v City Natl. Bank,
167 A.D.3d 467 (1st Dept. 2018) 3
Estate of Sydney Velor Davis,
1994 NYLJ LEXIS 8506 (Sur. Ct. Queens Cnty. 1994) 10
Fleischer v. Uccelini,
81 Misc. 2d 22 (First Dist., Nassau County 1975) 5
Goldfarb v. Virginia State Bar,
421 U.S. 773 (1975) 12
Griggs v. Duke Power Co.,
401 U.S. 424 (1971) 15
Halyalkar v. Board of Regents,
72 N.Y.2d 261 (1988) 4
Hoblock v. Albany Cnty. Bd of Elect,
422 F.3d 77 (2d Cir. 2005) 6
Hughes v. U.S.,
71 U.S. 232, 237 (1866) 2
Huntington Branch, NAACP v. Huntington,
844 F.2d 926 (2d Cir. 1988),
aff’d in part, 488 U.S. 15 (1988) 16
In re Estate of Smith,
24 N.Y.S.2d 233 (Sur. Ct. Kings Cnty. 1940) 6
In re Gault,
387 U.S. 1 (1967) 6.
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In re Lehmeyer’s Estate,
204 N.Y.S. 767 (Sur. Ct. N.Y. Cnty. 1924) 10
Izko Sportswear Co. v. Flaum,
20 A.D.3d 392 (2d Dept. 2005) 12
Johnson v. City of Shelby,
135 S.Ct. 346 (2014) 14
Johnson v. DeGrandy,
512 U.S. 997 (1994) 6
Jordan v. Cayuga County,
2004 U.S. DIST. LEXIS 1666 (N.D.N.Y. 2004) 9
Karacsonyi v. Radloff,
885 F.Supp. 368 (N.D.N.Y. 1995) 2, 5
Kaufman v. Eli Lilly & Co.,
65 NY2d 449 (1985) 7
Klein by Klein v. Seenauth,
180 Misc.2d 213 (Civ. Ct. Queens Cnty. 1999) 18
Kremer v. Chemical Constr. Corp.,
456 U.S. 461 (1982) 4
Lance v. Dennis,
546 U.S. 459, 464 (2006) 6
Lehman Brothers v. Hughes Hubbard & Reed, LLP,
92 N.Y.2d 1014 (1998) 5
Matter of Rain,
162 A.D.3d 1458 (N.Y. 3 Dept. 2018) 12
Matter of Van Zwienen,
202 A.D.3d 802 (2d Dept 2022) 5
Person v. Association of Bar,
554 F.2d 534 (2 Cir. 1977) 12
Ragin v. Harry Macklowe Real Estate Co.
6 F.3d 898 (2d Cir. 1993) 16
Raytheon Company v. Hernandez,
540 U.S. 44 (2003) 15
Sage Realty Corp. v. Proskauer Rose L.L.P.,
251 A.D.2d 35, 39 (1st Dept. 1998) 5
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Schwartz v. Public Adm’r of Bronx County,
24 N.Y.2d 65 (1969) 9
Smith v. Anchor Bldg. Corp.,
536 F.2d 231 (8th Cir. 1976) 16
St. Paul Fire Ins. v. Univ. Builders Supply,
409 F.3d 73, 83 (2d Cir. 2005) 6
Sung Cho v. City of New York,
910 F.3d 639 (2d Cir. 2018) 8
Tex. Dept of Housing and Community Affairs v. Inclusive Communities Project, Inc.,
576 U.S. 519 (2015) 16
U.S. v. Davis,
39 M.J. 281 (C.M.A. 1994) 9
United States v. Price,
383 U.S. 787 (1966) 14
Vermont Mut. Ins. Co. v McCabe & Mack, LLP,
105 A.D.3d 837 (2d Dept 2013) 12
Vossbrinck v. Accredited Home Lenders, Inc.,
773 F.3d 423 (2d Cir. 2014) 9
West v. Conrail,
107 S.Ct. 1538 (1987) 3
Xu v. NYC DOH,
2009 WL 222096 (Sup. Ct. N.Y. Cnty. 2009) 2
Federal Statutes
42 U.S.C. § 1981 16
42 U.S.C. § 1982 16
42 U.S.C. § 1983 20
42 U.S.C. § 1985 16
42 U.S.C. § 1986 16
42 U.S.C. § 3604 16
Fair Housing Act (FHA) 15
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State Statutes &Rules
22 NYCRR § 207.9 11
22 NYCRR § 207.26 4, 11, 12
22 NYCRR § 1200.0 13
22 NYCRR § 1240.2 (a) 13
CPLR 205 2
CPLR 411 5
CPLR 2220 5
CPLR 3013 14
CPLR 3016(b) 12
CPLR 3026 14
CPLR 5011 5
CPLR 5015(a)(3) 8
Judiciary L. § 487 12
RPAPL § 747 5
RPAPL § 853 18
SCPA § 401 10
SCPA § 1408 4
SCPA § 1411 4, 5, 12
Others
2 Harris N.Y. Estates: Probate Admin. & Litigation, § 25:27 (6th ed) 5
26 Carmody-Wait 2d § 152:74 5
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PRELIMINARY
Pro se plaintiff, Yanping Xu (“Xu”), M.S., respectfully submits her memorandum of law in
opposition to the motion of defendants Bill P. Parkas (“Parkas”) and McCoyd Parkas & Ronan
LLP. (collectively “MPR”), dated 5/30/2023, returnable 6/30/2023 Friday. (Dkt. 76, Mot. #
004). Pursuant to Part 70 Rules § III B(1), the return day should be administratively adjourned
to the first available Tuesday, 7/11/2023. In fact, it was adjourned to 7/11/2023 by both
parties. (Dkt. 118).
Based on the facts set forth in Xu’s First Amended Complaint (“Compl.”), Xu seeks redress
for MPR’s fraud, ejectment, trespass, tort, and housing discrimination. (Dkt. 3, Compl.).
For the following reasons and the reasons submitted previously that were relevant to the
argument in this motion (Dkt. 40, 46, 117 Xu Mols Mot # 001-003), the MPR motion, pursuant
to CPLR 3211(a)(1), (5), and (7), must be denied in its entirety.
For the same reasons relevant to previous defendants’ motions, the Court should, sua
sponte, reconsider all erroneous orders, dated 6/20/2023. (Dkt. 120, 122 Orders). Prior to an
appeal, the Court should take the opportunity to correct its errors.
STATEMENT OF RELEVANT FACTS
See Xu’s affidavit, dated 7/5/2023, that includes the facts submitted previously on
4/18/2023 and 6/13/2023 (Dkt. 46, 117 Xu Mols).
Repeatedly and noticeably, the plain language of the Second Amendment to Trust, the last
amendment, is:
THIRD: The Trust is hereby affirmed in all other respects. (Dkt. 41, Sec. Amd. at 8).
No doubt, the Second Amendment supersedes the First Amendment, assuming that,
arguendo, the Last Will is not invalidated, and the Second Trust Amendment is not set aside.
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ARGUMENT
I. The Standard of Review
Xu repeats and recites quotations in her standard of a review previously submitted on
4/18/2023. (Dkt. 46, Xu Mol).
Additionally, “[t]he issue on a motion to dismiss is not whether the plaintiff will prevail,
but whether the plaintiff is entitled to offer evidence to the claims.” Karacsonyi v. Radloff,
885 F.Supp. 368, 369 (N.D.N.Y. 1995) (quoting Scheuer v. Rnodes, 416 U.S. 236 [1974]).
“And that is precisely the point: even after Twombly, dismissal of a pro se claim as
insufficiently pleaded is appropriate only in the most unsustainable of cases”. Boykin v.
KeyCorp, 521 F.3d 202, 216 (2d. Cir. 2008). “[T]he petition of this self-represented litigant is
assessed on its merits rather than dismissed on procedural grounds.” Xu v. NYC DOH, 2009
WL 222096, *1 (Sup. Ct. N.Y. Cnty. 2009).
On a motion to dismiss pursuant to CPLR 3211 (a)(5):
“In order that a judgment may constitute a bar to another suit, it must be
rendered in a proceeding between the same parties or their privies, and the
point of controversy must be the same in both cases, and must be
determined on its merits.” Hughes v. U.S., 71 U.S. 232, 237 (1866).
The doctrine, however, is a flexible one, and the enumeration of these
elements is intended merely as a framework, not a substitute, for
case-by-case analysis of the facts and realities. "In the end, the
fundamental inquiry is whether relitigation should be permitted in a
particular case in light of * * * fairness to the parties, conservation of the
resources of the court and the litigants, and the societal interests in
consistent and accurate results. No rigid rules are possible, because even
these factors may vary in relative importance depending on the nature of
the proceedings * * *" Buechel v. Bain, 97 N.Y.2d 295, 304 (2001)
(citations omitted).
II. The Complaint is Timely
MPR contends that the complaint is untimely under CPLR 205 (a). (MPR Mol. 17). It
is the same contention that the County mistakenly makes. (Dkt. 73 & 119, County Mols.).
As noted previously, CPLR 205(a) does not bar instant action. (Dkt. 117, Xu Mol 2-3).
Defendants completely ignore that the statute of limitations was tolled when the
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complaint was filed on 3/8/2019 at the federal court; and that it restarted on the ending of her
federal action in SCOTUS on 6/20/20222. See, e.g., below:
Our holding that the statute of limitations was tolled when the
complaint was filed eliminates the potential difficulty of determining
the actual dates on which service of the complaint was made on the
various defendants. West v. Conrail, 107 S.Ct. 1538, 1541 n. 5 (1987).
“The fraud, breach of fiduciary duty, and aiding and abetting breach of
fiduciary duty claims against NBUF Development, Black United Fund,
and First Pro are timely because of the tolling effect of the federal
action commenced by plaintiffs in January 2013 (see CPLR 205).” D.
Penguin Bros. Ltd. v City Natl. Bank, 167 A.D.3d 467 (1st Dept. 2018).
On record, Xu commenced this action on 11/15/20223. It is a total of less than eight (8)
months after the ejectment on 12/14/2018, as explained previously4. Repeatedly, this action
satisfies any statute of limitations applied.
Therefore, MPR’s motion should be denied in this regard.
---------------------------------------------
2
SCOTUS entered the order on 5/16/2022, then the clock ran on 5/17 plus 33 days for stay
and a mailing period. (Dkt. 72, SCOTUS Letter).
3
In her previous submission, 11/2023 was mistakenly typed. (Dkt. 117, Xu Mol 2, 3).
4
It is 84 days from 12/14/2018 to 3/8/2019, 148 days from 6/20/2022 to 11/15/2022. The
total is 232 days, less than eight (8) months.
III. The Preclusion Doctrine Is Inapplicable
MPR makes the same contention as other defendants have made. (MPR Mol 9-11).
Relying on, inter alia, the doctrine of collateral estoppel, this Court has already erred in
granting private defendants’ motions. (Dkt. 120, 122).
Here, Xu repeats and recites decisions on which she previously relied. She reiterates her
previous refutation relevant to MPR. (Dkt. 40, 46, 117, Xu Mols).
Additional refutation follows:
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i. Fairness and Flexible Controlling
“Re-determination of issues is warranted if there is reason to doubt the
quality, extensiveness, or fairness of procedures followed in prior
litigation.” Kremer v. Chemical Constr. Corp., 456 U.S. 461, 481 (1982)
(citation omitted).
Collateral estoppel is a doctrine based on general notions of fairness
involving a practical inquiry into the realities of the litigation; it should
never be rigidly or mechanically applied. Halyalkar v. Board of Regents,
72 N.Y.2d 261, 268-269 (1988) (citations omitted).
The facts delineated in Xu’s complaint demonstrate that there is a reason to doubt the
previous Surrogate orders, such as the issue of the legal successor trustee. The above
grounds for the preclusion should be controlling.
ii. The Surrogate’s Orders are Invalid --- Valid Judgment Requirement
Collateral estoppel requests, for example, that “four conditions are fulfilled”, including “a
valid and final judgment on the merits”. (MPR Mol 8).
As complained at ¶ 25, MPR failed to comply with SCPA § 14115 and 22 NYCRR §
207.26. In the absence of “Citation upon filling of objection”, inter alias, the Surrogate
lacked jurisdiction to issue its decree on the law. See 22 NYCRR § 207.26 Contested probate;
notice of objections filed provides § (c):
“Since the requirements of SCPA 1411 are jurisdictional, all further
pretrial procedures or proceedings shall be stayed until there is compliance
with this rule.”
Consequently, the orders in the following ejectment proceeding are invalid because of the
invalid decree, which passed real property invalidly by the pour-over will to the trust
amendment. (Ex. 1 -- Decree Granting Probate, dated 11/30/2017; Dkt. 48, Last Will Ex. 2).
While the probate proceeding was pending, the following ejectment proceeding was
premature.
Pursuant to SCPA § 1408, Probate not allowed unless Court satisfied, “a will cannot be
admitted to probate by default or even upon the consent of the parties.” See 26
Carmody-Wait 2d § 152:74 p. 348 v. 2010. “[A] revocable trust is effectively a will
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substitute.” 2 Harris N.Y. Estates: Probate Admin. & Litigation, § 25:27 (6th ed.). Thus,
trust amendments, will substitutes, cannot be admitted by default in the Surrogate.
A default order, even an order, is not a judgment as defined clearly by the statutes, such
as RPAPL § 747 Judgment, CPLR 411 Judgment, CPLR 5011 Definition and content of
judgment, and CPLR 2220 Entry and filing of order. “A decision upon which no formal
judgment has been entered is ineffective as a bar to subsequent proceedings.” Sage Realty
Corp. v. Proskauer Rose L.L.P., 251 A.D.2d 35, 39 (1st Dept. 1998) (citation omitted); “For a
collateral estoppel to operate, the material facts of questions in issue must have been judicially
determined and conclusively settled by a judgment rendered in the action.” Fleischer v.
Uccelini, 81 Misc. 2d 22 (First Dist., Nassau County 1975).
---------------------------------------------
5
SCPA § 1411. Citation upon filing of objections in pertinent part:
2. The citation shall be submitted by the proponent to the court within
thirty days after the filing of objections. If the proponent fails to submit
the citation, the citation may be submitted by an objectant or any other
interested person.
iii. The Surrogate’s Orders Are Not Final --- Finality Requirement
As “a valid and final judgment on the merits” cited previously indicates that finality is a
prerequisite to applying for the doctrine. See, e.g., Kremer, supra.
In fact, the ejectment proceeding has never issued a final judgment/decree in the Surrogate.
It is “pending under index No. 2017-778/B.” (Dkt. 13, Jablonsky Mol at 1).
Xu’s appeal is still pending to re-argue or leave to appeal to the Court of Appeal for
Matter of Van Zwienen, 202 A.D.3d 802 (2d Dept 2022). See Lehman Brothers v. Hughes
Hubbard & Reed, LLP, 92 N.Y.2d 1014, 1016 (1998) (Where a dismissal of an action is
appealable as a matter of right, the action is not terminated; and the six-month period does not
begin to run until that appeal is exhausted.) While the appeal is pending, applying the
preclusion doctrine does not meet procedural due process. It implies that the outcome of the
appeal has no weight. However, an appellate review is one demand of due process - “Right
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to appellate review.” In re Gault, 387 U.S. 1, 10 (1967).
iv. MPR Is Neither a Party Nor In Privity In The Surrogate --- Party Requirement
“No person may be bound by a judicial direction unless he has been served with process.”
In re Estate of Smith, 24 N.Y.S.2d 704, 710 (Sur. Ct. Kings Cnty 1940). Unquestionably,
MPR has never been served with the citation in the Surrogate. MPR has neither the right to
appeal the Surrogate’s orders nor to be bound by them. “[O]ne lacks standing to challenge a
judgment adjudicating a claim to which it was not a party.” St. Paul Fire Ins. v. Univ.
Builders Supply, 409 F.3d 73, 83 (2d Cir. 2005); “The general rule [is] that one who is not a
party or has not been treated as a party to a judgment has no right to appeal therefrom.”
Lance v. Dennis, 546 U.S. 459, 464 (2006). “It was in no position to ask this Court to
review the state court's [order] and has not directly attacked it in [the Surrogate] proceeding.”
Johnson v. DeGrandy, 512 U.S. 997, 1006 (1994).
“Mr. Justice Lurton said: ‘What is privity? As used when dealing with the estoppel of a
judgment, privity denotes mutual or successive relationship to the same right of property’”
In re Estate of Smith, 24 N.Y.S.2d 233, 238 (Sur. Ct. Kings Cnty. 1940). Undoubtedly,
MPR has no right to the property. In the Surrogate, MPR did not represent Van Zwienen in
his capacity as an individual sued here, either. See Hoblock v. Albany Cnty. Bd of Elect, 422
F.3d 77, 90-91 (2d Cir. 2005), infra:
The Supreme Court has explained that a nonparty can be bound by the
results of someone else's litigation “when, in certain limited
circumstances, a person, although not a party, has his interests adequately
represented by someone with the same interests who is a party.”....And
as Wilks explained, where a nonparty controls a party, identity of interest
and adequacy of representation suffice to create privity between
nonparties and parties to an earlier suit.
The Surrogate also lacks jurisdiction over MPR because MPR is a living person, like the
County, has no interest in the property or estate. See Matter of Juan C. v. Cortines, 89
N.Y.2d 659, 666 (1997) § II.A (The court agreed, inter alia, that appellants were not parties or
privity in the family court proceeding. The collateral estoppel did not apply.).
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v. Issues Decided by Default --- Not a Full and Fair Opportunity to Litigate
“Van Zwienen was the legal Successor Trustee” as decided by the Surrogate that bars Xu’s
refutation herein, which defendants contend and the Court has agreed. (e.g., MPR Mol 11 ,
Dkt. 120, 122, Orders at 4).
“Petitioner, Raymond E. Van Zwienen, is.... the successor trustee of the William H. Van
Zwienen Revocable Trust” that is the first sentence of the February Order. It reflects that
Van Zwienen being the successor trustee was not actually litigated. The February Order, sua
sponte, by default, was affirmed by the April Order. “An issue is not actually litigated if, for
example, there has been a default.” Kaufman v. Eli Lilly & Co., 65 NY2d 449, 456-457
(1985);
“In the case of a judgment entered by confession, consent, or default,
none of the issues is actually litigated, and therefore, the principle of
issue preclusion does not apply with respect to any issue in a subsequent
action.” Restatement (Second) of Judgments § 27 at 257 (1982)
(emphasis added), cited by Arizona v. California, 120 S.Ct. 2304, 2318
(2000), supplemented on other grounds, 121 S.Ct. 292 (2000).
As noted supra and infra, the Surrogate lacked the jurisdiction to go forward with the prior
probate proceeding. Consequently, all orders and the decree in the prior probate proceeding
are invalid. Thus, trying to rely on the erroneous assertions regarding the probate proceeding 6
in the April Order cannot be successful, even assuming that the ejectment proceeding is not
invalidated while the probate pull-over Will proceeding was pending.
------------------------------------------
6
The surrogate demonstrated judicial prejudice to Xu, the pro se respondent, by repeating, “I
don’t care that you’re pro se. I told you I don’t care”, although self–representation is a
constitutional right. (Ex. 2 -- Excerpt from the Transcript on 6/29/2017).
vi. Issue of the Fraudulent Successor Trustee Not Raised and Decided --
Identical Issue Requirement
The issue of whether Van Zwienen has been the fraudulent successor trustee was never
raised in the Surrogate shown by record. Consequently, it was not actually litigated,
considered, and decided. No orders either asserted or decided the fraud issue. (e.g., Dkt.
82 - 89, Orders Ex. E - L; Ex. 3 -- Xu Aff., dated 2/24/2018; Ex. 4 -- Xu Mol, dated
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2/24/2018; Ex. 5 -- Parkas’s affirmation, dated 3/13/2018).
It was impossible for Xu to raise the issue of the fraudulent successor trustee in that
proceeding because private defendants successfully deceived her and the Surrogate at that
time. (e.g., Compl. ¶¶ 26, 27, 29 - 33; Ex. 5 [1] -- Notice to Quit and Vacate Real Property,
dated 8/21/2017; Ex. 5 [2] -- Letter from Parkas to Xu, dated 9/7/2017; Dkt. 81, Pet. Ex. D).
Prior to the April order, Parkas had affirmed Van Zwienen being the first successor trustee
under the 2013 First Amendment and the six-month limitation for Xu residing in her home
after decedent’s death under the 2014 Second Amendment. Parkas intentionally had not
affirmed, or mentioned, that Xu has been the legal successor trustee confirmed by the Second
Amendment. (e.g., Ex. 5 ¶¶ 9, 10; Xu Aff. ¶¶ 6-9; Sec. Amd. at Third).
vii. Issues Decided on the Ground of the Fraud Lacking Standing
Defendants also contend that Van Zwienen was entitled to possession of the property as
decided by the Surrogate, which precludes Xu’s disputation herein.
However, that ruling was decided on the fraud ground of Van Zwienen being the legal
successor trustee.
Under CPLR 5015(a)(3), a court may overturn a prior judgment or order on the grounds
of fraud, misrepresentation, or other misconduct of an adverse party. Rooker-Feldman will
not apply where plaintiff's claims “‘speak not to the propriety of the state court judgments,
but to the fraudulent course of conduct that defendants pursued in obtaining such
judgments.’” Sung Cho v. City of New York, 910 F.3d 639, 645-646 (2d Cir. 2018)
(quoting Sykes v. Mel S. Harris and Assocs., LLC, 780 F.3d 70, 94-95 [2d Cir. 2015]); “To
the extent Vossbrinck's pro se complaint can be liberally construed as asserting fraud claims
that are not barred by Rooker–Feldman—because they seek damages from Defendants for
injuries Vossbrinck suffered from their alleged fraud,, ......”. Vossbrinck v. Accredited Home
Lenders, Inc., 773 F.3d 423, 427-428 (2d Cir. 2014).
Accordingly, defendants’ contention is unavailing.
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viii. The Surrogate Is A Limited Judiciary Forum
Schwartz v. Public Adm’r of Bronx County, 24 N.Y.2d 65, 71 (1969) has instructed the
various elements to consider applying the preclusion, including the forum of the prior
litigation.
No question, the ejectment proceeding is a special proceeding. A Surrogate is a limited
judiciary forum that significantly distinguishes a Supreme Court, which may adjudicate the
full relief sought for living parties. “In addition, the issue that was previously decided must
be decisive in this action; that is, it must ‘prove or disprove … an essential element of any of
the claims set forth in the complaint.’" Jordan v. Cayuga County, 2004 U.S. DIST. LEXIS
1666, *22 (N.D.N.Y. 2004) (citation omitted).
“As Justice Potter Stewart has stated several times, ‘Fairness is what justice really is.’ D.
Shrager and E. Frost, The Quotable Lawyer § 71.68 at 158 (1986).’” U.S. v. Davis, 39 M.J.
281, 283 (C.M.A. 1994). Justice Stewart’s words are proven in this case by applying the
preclusion doctrine, which is neither fair nor just.
For the foregoing reasons, all defendants’ motions must be denied in this regard.
IV. The Documentary Evidence Supports Xu’s Claim
MPR relied on the Surrogate’s orders as documentary evidence to rebut Xu’s claims.
(MPR Mol. 11-12).
On the contrary, the orders reflect that at the outset, private defendants just successfully
deceived Xu and the Surrogate, as the fraudulent successor trustee. (e.g., Pet.; Trust; Sec.
Amd Trust; Feb. & Apr. Orders).
In contrast to their contention, the April Order shows that the Surrogate addressed Van
Zwienen only being the executor fiduciary raised by Xu, not the trustee. (April Order at 6;
Ex. 3, 4).
MPR also contends that its representation lacked authority, refuted by Xu. (Compl. ¶ 24).
The erroneously invalid order proves that Parkas did not “furnish acknowledged evidence of
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authority” in the absence of the Surrogate’s directive first.
Its ruling was based on the representation in the prior contested probate proceeding.
However, “[t]he attorney must obtain this authorization for each proceeding in which the
attorney appears for the client. This requirement protects the court's order or decree by
ensuring that the court has obtained personal jurisdiction over all parties.” SCPA § 401
Commentary, “How an Adult Competent Party Appears in Surrogate's Court” (emphasis
added). Undeniably, Parkas6 initially appeared in the first probate proceeding on 5/1/2017
by notice of appearance, i.e., no proof of authority for a star. (Ex. 7 -- Parkas Notice of
Appearance, dated 5/1/2017). “Notice of appearance had to be accompanied by properly
executed writing by nonresident party authorizing appearance of attorneys and an appearance
not so supported was stricken out.” In re Lehmeyer’s Estate, 204 N.Y.S. 767 (Sur. Ct. N.Y.
Cnty. 1924).
The Surrogate also relied on Van Zwienen’s signature in the petition. Squarely, Van
Zwienen, a non-domiciliary, has been governed by a specific law 8, for his appearance in the
Surrogate. Relying on the pleadings for an appeal in the Surrogate is applicable to only a
domiciliary.
As discussed supra, citation upon the filing of objections was never filed in the probate
proceeding. 9
“The provisions of SCPA 1411 requiring the serving and filing of a notice of
objections are jurisdictional. Because the requirements are jurisdictional Rule 207.26
provides that all further pre-trial procedures or proceedings shall be stayed until there is
compliance.” Estate of Sydney Velor Davis, 1994 NYLJ LEXIS 8506, *3 (Sur. Ct. Queens
Cnty. 1994).
The April Order at 2 reveals that MPR misled the Surrogate to go forward with the
probate proceeding. (Compl. ¶ 25). For example, MPR “cross-moved for sanctions”
“requesting that the court strike the objection to probate” after Xu “moved to re-argue or
vacate the pretrial order.”.
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Notably, at this initial stage, Xu is not required to submit evidence. But she does
provide documentary evidence that affirmatively supports her positions.
The motions must be denied in this respect.
-----------------------------------------------------
7
Decedent never knew Parkas and his firm.
8
22 NYCRR § 207.9 Appearances in pertinent part:
b) Unless otherwise directed by the Surrogate, attorneys appearing on
behalf of nondomiciliaries or parties not personally served within the
State must furnish acknowledged evidence of authority pursuant to
SCPA 401.
9
22 NYCRR § 207.26 Contested probate; notice of objections filed:
(a) Objections to probate of a will shall be filed and served with proof of
service in conformity with SCPA 1410.
(b) Within thirty days of the filing of objections, the proponent shall
present a citation in accordance with section 1411 of the SCPA. If the
proponent fails to timely present such citation or, having presented it,
fails to have it issued by the court, the objectant or any other person
interested may present such citation to be served pursuant thereto.
(c)........ (See supra)
Pursuant to the above, the proponent, Van Zwienen, was mandated to serve and file it. It
is optional for Xu to do. Because the petition, including the addresses of Van Zwienen’s
siblings, was never served to Xu, she could not do it anyway.
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V. Xu Sufficiently States a Cause of Action
A. Fraud Claim
MPR contends that Xu failed to plead with specificity pursuant to CPLR 3016(b) and
Judiciary Law § 487. (MPR Mol 12-15).
On the face of the complaint, Xu detailed who, when, where, what, and how the private
defendants deceived. (Compl. § III & IV).
MPR’s own assertion rebuts its conclusion. For example, it notices that Xu “asserts
repeatedly in her complaint that Van Zwienen was not the Successor Trustee. (See Ex. [V],
¶¶ 27, 29, 31, 33, 37, and 38)”. (MPR Mol 11).
MPR specifies complaint ¶ 27 in support of its assertion. MPR wholly ignores that
decedent designated Xu “as his successor trustee” (Comp. ¶ 4) and Van Zwienen “as the
fraudulent successor trustee in decedent’s passive (dry) trust.” (Compl. ¶ 26). It also fully
ignores that decedent bequeathed his tangible personal property “to be divided among them in
such manner as they shall agree upon.” The tangible personal property was not equally
divided by the Will. (Compl. ¶ 34; Dkt. 48, Last Will). These examples specify that
MPR’s statements were false.
Further, MPR challenges that Xu “did not identify the purported ‘controlling legal
authority’”. (Compl. ¶ 42).
On the other hand, MPR notices Compl. ¶¶ 24, 25. As discussed supra, MPR failed to
serve and submit the citation of objections as well as proof of authority from Van Zwienen
while it pushed forward with the probate proceeding. Parkas, a top-rated estate & trust
10.
litigation attorney, was selected to Super Lawyers for 2015 - 2023. Of course, he had
knowledge of such things as SCPA § 1411 and 22 NYCRR 207.26, while Xu, the pro se
litigant, did not know those at that time.
Furthermore, the petition, signed by Parkas, “prays for a decree,” including “issuing a
warrant for her removal from possession of the real property”. Although the Surrogate did
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Preview
FILED: SUFFOLK COUNTY CLERK 07/05/2023 08:40 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 07/05/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ----------------------------------------------------------------------X YANPING XU, PLAINTIFF, Index: 206004/2022 v. IAS Judge Assigned SUFFOLK COUNTY, et al., Hon. Paul M. Hensley DEFENDANTS. ----------------------------------------------------------------------X Mot. # 004 PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO THE MOTION OF DEFENDANTS BILL P. PARKAS, MCCOYD, PARKAS & RONAN LLP Yanping Xu, M.S. Pro Se Plaintiff POBox 376 Islip, NY 11706 646-894-6974 yp_xu2000@yahoo.com Dated:7/5/2023 1 of 29 FILED: SUFFOLK COUNTY CLERK 07/05/2023 08:40 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 07/05/2023 TABLE OF CONTENTS TABLE OF CONTENTS ............................................................................................................ i TABLE OF AUTHORITY .......................................................................................................iii PRELIMINARY ........................................................................................................................ 1 STATEMENT OF RELEVANT FACTS .................................................................................. 1 ARGUMENT ............................................................................................................................. 2 I. The Standard of Review............................................................................................... 2 II. The Complaint is Timely ......................................................................................... 2 III. The Preclusion Doctrine Is Inapplicable ................................................................. 3 i. Fairness and Flexible Controlling ........................................................................ 4 ii. The Surrogate’s Orders are Invalid --- Valid Judgment Requirement ................. 4 iii. The Surrogate’s Orders Are Not Final --- Finality Requirement ..................... 5 iv. MPR Is Neither a Party Nor In Privity In The Surrogate --- Party Requirement ............................................................................................................... 6 v. Issues Decided by Default --- Not a Full and Fair Opportunity to Litigate ......... 7 vi. Issue of the Fraudulent Successor Trustee Not Raised and Decided -- ........... 7 Identical Issue Requirement ....................................................................................... 7 vii. Issues Decided on the Ground of the Fraud Lacking Standing ........................ 8 viii. The Surrogate Is A Limited Judiciary Forum .................................................. 9 IV. The Documentary Evidence Supports Xu’s Claim.................................................. 9 V. Xu Sufficiently States a Cause of Action .............................................................. 12 A. Fraud Claim .................................................................................................... 12 B. Constitutional Claims ..................................................................................... 14 C. Housing Discrimination Claims ..................................................................... 15 VI. MPR Is Entitled to Be Sanctioned Including Monetary Sanctions ....................... 18 i 2 of 29 FILED: SUFFOLK COUNTY CLERK 07/05/2023 08:40 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 07/05/2023 CONCLUSION ........................................................................................................................ 19 EXHIBITS ............................................................................................................................... 20 APPENDIX .............................................................................................................................. 21 CERTIFICATE OF COMPLIANCE ....................................................................................... 22 ii 3 of 29 FILED: SUFFOLK COUNTY CLERK 07/05/2023 08:40 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 07/05/2023 TABLE OF AUTHORITY Cases Arizona v. California, 120 S.Ct. 2304, 2318 (2000), supplemented on other grounds, 121 S.Ct. 292 (2000) 7 Boykin v. KeyCorp, 521 F.3d 202, 216 (2d. Cir. 2008) 2, 14, 15 Buechel v. Bain, 97 N.Y.2d 295(2001) 2 Coregis Ins. Co. v. Lewis, et.al, 2006 U.S. Dist. LEXIS 55326 (E.D.N.Y. 2006) 12 D. Penguin Bros. Ltd. v City Natl. Bank, 167 A.D.3d 467 (1st Dept. 2018) 3 Estate of Sydney Velor Davis, 1994 NYLJ LEXIS 8506 (Sur. Ct. Queens Cnty. 1994) 10 Fleischer v. Uccelini, 81 Misc. 2d 22 (First Dist., Nassau County 1975) 5 Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975) 12 Griggs v. Duke Power Co., 401 U.S. 424 (1971) 15 Halyalkar v. Board of Regents, 72 N.Y.2d 261 (1988) 4 Hoblock v. Albany Cnty. Bd of Elect, 422 F.3d 77 (2d Cir. 2005) 6 Hughes v. U.S., 71 U.S. 232, 237 (1866) 2 Huntington Branch, NAACP v. Huntington, 844 F.2d 926 (2d Cir. 1988), aff’d in part, 488 U.S. 15 (1988) 16 In re Estate of Smith, 24 N.Y.S.2d 233 (Sur. Ct. Kings Cnty. 1940) 6 In re Gault, 387 U.S. 1 (1967) 6. iii 4 of 29 FILED: SUFFOLK COUNTY CLERK 07/05/2023 08:40 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 07/05/2023 In re Lehmeyer’s Estate, 204 N.Y.S. 767 (Sur. Ct. N.Y. Cnty. 1924) 10 Izko Sportswear Co. v. Flaum, 20 A.D.3d 392 (2d Dept. 2005) 12 Johnson v. City of Shelby, 135 S.Ct. 346 (2014) 14 Johnson v. DeGrandy, 512 U.S. 997 (1994) 6 Jordan v. Cayuga County, 2004 U.S. DIST. LEXIS 1666 (N.D.N.Y. 2004) 9 Karacsonyi v. Radloff, 885 F.Supp. 368 (N.D.N.Y. 1995) 2, 5 Kaufman v. Eli Lilly & Co., 65 NY2d 449 (1985) 7 Klein by Klein v. Seenauth, 180 Misc.2d 213 (Civ. Ct. Queens Cnty. 1999) 18 Kremer v. Chemical Constr. Corp., 456 U.S. 461 (1982) 4 Lance v. Dennis, 546 U.S. 459, 464 (2006) 6 Lehman Brothers v. Hughes Hubbard & Reed, LLP, 92 N.Y.2d 1014 (1998) 5 Matter of Rain, 162 A.D.3d 1458 (N.Y. 3 Dept. 2018) 12 Matter of Van Zwienen, 202 A.D.3d 802 (2d Dept 2022) 5 Person v. Association of Bar, 554 F.2d 534 (2 Cir. 1977) 12 Ragin v. Harry Macklowe Real Estate Co. 6 F.3d 898 (2d Cir. 1993) 16 Raytheon Company v. Hernandez, 540 U.S. 44 (2003) 15 Sage Realty Corp. v. Proskauer Rose L.L.P., 251 A.D.2d 35, 39 (1st Dept. 1998) 5 iv 5 of 29 FILED: SUFFOLK COUNTY CLERK 07/05/2023 08:40 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 07/05/2023 Schwartz v. Public Adm’r of Bronx County, 24 N.Y.2d 65 (1969) 9 Smith v. Anchor Bldg. Corp., 536 F.2d 231 (8th Cir. 1976) 16 St. Paul Fire Ins. v. Univ. Builders Supply, 409 F.3d 73, 83 (2d Cir. 2005) 6 Sung Cho v. City of New York, 910 F.3d 639 (2d Cir. 2018) 8 Tex. Dept of Housing and Community Affairs v. Inclusive Communities Project, Inc., 576 U.S. 519 (2015) 16 U.S. v. Davis, 39 M.J. 281 (C.M.A. 1994) 9 United States v. Price, 383 U.S. 787 (1966) 14 Vermont Mut. Ins. Co. v McCabe & Mack, LLP, 105 A.D.3d 837 (2d Dept 2013) 12 Vossbrinck v. Accredited Home Lenders, Inc., 773 F.3d 423 (2d Cir. 2014) 9 West v. Conrail, 107 S.Ct. 1538 (1987) 3 Xu v. NYC DOH, 2009 WL 222096 (Sup. Ct. N.Y. Cnty. 2009) 2 Federal Statutes 42 U.S.C. § 1981 16 42 U.S.C. § 1982 16 42 U.S.C. § 1983 20 42 U.S.C. § 1985 16 42 U.S.C. § 1986 16 42 U.S.C. § 3604 16 Fair Housing Act (FHA) 15 v 6 of 29 FILED: SUFFOLK COUNTY CLERK 07/05/2023 08:40 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 07/05/2023 State Statutes &Rules 22 NYCRR § 207.9 11 22 NYCRR § 207.26 4, 11, 12 22 NYCRR § 1200.0 13 22 NYCRR § 1240.2 (a) 13 CPLR 205 2 CPLR 411 5 CPLR 2220 5 CPLR 3013 14 CPLR 3016(b) 12 CPLR 3026 14 CPLR 5011 5 CPLR 5015(a)(3) 8 Judiciary L. § 487 12 RPAPL § 747 5 RPAPL § 853 18 SCPA § 401 10 SCPA § 1408 4 SCPA § 1411 4, 5, 12 Others 2 Harris N.Y. Estates: Probate Admin. & Litigation, § 25:27 (6th ed) 5 26 Carmody-Wait 2d § 152:74 5 vi 7 of 29 FILED: SUFFOLK COUNTY CLERK 07/05/2023 08:40 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 07/05/2023 PRELIMINARY Pro se plaintiff, Yanping Xu (“Xu”), M.S., respectfully submits her memorandum of law in opposition to the motion of defendants Bill P. Parkas (“Parkas”) and McCoyd Parkas & Ronan LLP. (collectively “MPR”), dated 5/30/2023, returnable 6/30/2023 Friday. (Dkt. 76, Mot. # 004). Pursuant to Part 70 Rules § III B(1), the return day should be administratively adjourned to the first available Tuesday, 7/11/2023. In fact, it was adjourned to 7/11/2023 by both parties. (Dkt. 118). Based on the facts set forth in Xu’s First Amended Complaint (“Compl.”), Xu seeks redress for MPR’s fraud, ejectment, trespass, tort, and housing discrimination. (Dkt. 3, Compl.). For the following reasons and the reasons submitted previously that were relevant to the argument in this motion (Dkt. 40, 46, 117 Xu Mols Mot # 001-003), the MPR motion, pursuant to CPLR 3211(a)(1), (5), and (7), must be denied in its entirety. For the same reasons relevant to previous defendants’ motions, the Court should, sua sponte, reconsider all erroneous orders, dated 6/20/2023. (Dkt. 120, 122 Orders). Prior to an appeal, the Court should take the opportunity to correct its errors. STATEMENT OF RELEVANT FACTS See Xu’s affidavit, dated 7/5/2023, that includes the facts submitted previously on 4/18/2023 and 6/13/2023 (Dkt. 46, 117 Xu Mols). Repeatedly and noticeably, the plain language of the Second Amendment to Trust, the last amendment, is: THIRD: The Trust is hereby affirmed in all other respects. (Dkt. 41, Sec. Amd. at 8). No doubt, the Second Amendment supersedes the First Amendment, assuming that, arguendo, the Last Will is not invalidated, and the Second Trust Amendment is not set aside. 1 8 of 29 FILED: SUFFOLK COUNTY CLERK 07/05/2023 08:40 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 07/05/2023 ARGUMENT I. The Standard of Review Xu repeats and recites quotations in her standard of a review previously submitted on 4/18/2023. (Dkt. 46, Xu Mol). Additionally, “[t]he issue on a motion to dismiss is not whether the plaintiff will prevail, but whether the plaintiff is entitled to offer evidence to the claims.” Karacsonyi v. Radloff, 885 F.Supp. 368, 369 (N.D.N.Y. 1995) (quoting Scheuer v. Rnodes, 416 U.S. 236 [1974]). “And that is precisely the point: even after Twombly, dismissal of a pro se claim as insufficiently pleaded is appropriate only in the most unsustainable of cases”. Boykin v. KeyCorp, 521 F.3d 202, 216 (2d. Cir. 2008). “[T]he petition of this self-represented litigant is assessed on its merits rather than dismissed on procedural grounds.” Xu v. NYC DOH, 2009 WL 222096, *1 (Sup. Ct. N.Y. Cnty. 2009). On a motion to dismiss pursuant to CPLR 3211 (a)(5): “In order that a judgment may constitute a bar to another suit, it must be rendered in a proceeding between the same parties or their privies, and the point of controversy must be the same in both cases, and must be determined on its merits.” Hughes v. U.S., 71 U.S. 232, 237 (1866). The doctrine, however, is a flexible one, and the enumeration of these elements is intended merely as a framework, not a substitute, for case-by-case analysis of the facts and realities. "In the end, the fundamental inquiry is whether relitigation should be permitted in a particular case in light of * * * fairness to the parties, conservation of the resources of the court and the litigants, and the societal interests in consistent and accurate results. No rigid rules are possible, because even these factors may vary in relative importance depending on the nature of the proceedings * * *" Buechel v. Bain, 97 N.Y.2d 295, 304 (2001) (citations omitted). II. The Complaint is Timely MPR contends that the complaint is untimely under CPLR 205 (a). (MPR Mol. 17). It is the same contention that the County mistakenly makes. (Dkt. 73 & 119, County Mols.). As noted previously, CPLR 205(a) does not bar instant action. (Dkt. 117, Xu Mol 2-3). Defendants completely ignore that the statute of limitations was tolled when the 2 9 of 29 FILED: SUFFOLK COUNTY CLERK 07/05/2023 08:40 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 07/05/2023 complaint was filed on 3/8/2019 at the federal court; and that it restarted on the ending of her federal action in SCOTUS on 6/20/20222. See, e.g., below: Our holding that the statute of limitations was tolled when the complaint was filed eliminates the potential difficulty of determining the actual dates on which service of the complaint was made on the various defendants. West v. Conrail, 107 S.Ct. 1538, 1541 n. 5 (1987). “The fraud, breach of fiduciary duty, and aiding and abetting breach of fiduciary duty claims against NBUF Development, Black United Fund, and First Pro are timely because of the tolling effect of the federal action commenced by plaintiffs in January 2013 (see CPLR 205).” D. Penguin Bros. Ltd. v City Natl. Bank, 167 A.D.3d 467 (1st Dept. 2018). On record, Xu commenced this action on 11/15/20223. It is a total of less than eight (8) months after the ejectment on 12/14/2018, as explained previously4. Repeatedly, this action satisfies any statute of limitations applied. Therefore, MPR’s motion should be denied in this regard. --------------------------------------------- 2 SCOTUS entered the order on 5/16/2022, then the clock ran on 5/17 plus 33 days for stay and a mailing period. (Dkt. 72, SCOTUS Letter). 3 In her previous submission, 11/2023 was mistakenly typed. (Dkt. 117, Xu Mol 2, 3). 4 It is 84 days from 12/14/2018 to 3/8/2019, 148 days from 6/20/2022 to 11/15/2022. The total is 232 days, less than eight (8) months. III. The Preclusion Doctrine Is Inapplicable MPR makes the same contention as other defendants have made. (MPR Mol 9-11). Relying on, inter alia, the doctrine of collateral estoppel, this Court has already erred in granting private defendants’ motions. (Dkt. 120, 122). Here, Xu repeats and recites decisions on which she previously relied. She reiterates her previous refutation relevant to MPR. (Dkt. 40, 46, 117, Xu Mols). Additional refutation follows: 3 10 of 29 FILED: SUFFOLK COUNTY CLERK 07/05/2023 08:40 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 07/05/2023 i. Fairness and Flexible Controlling “Re-determination of issues is warranted if there is reason to doubt the quality, extensiveness, or fairness of procedures followed in prior litigation.” Kremer v. Chemical Constr. Corp., 456 U.S. 461, 481 (1982) (citation omitted). Collateral estoppel is a doctrine based on general notions of fairness involving a practical inquiry into the realities of the litigation; it should never be rigidly or mechanically applied. Halyalkar v. Board of Regents, 72 N.Y.2d 261, 268-269 (1988) (citations omitted). The facts delineated in Xu’s complaint demonstrate that there is a reason to doubt the previous Surrogate orders, such as the issue of the legal successor trustee. The above grounds for the preclusion should be controlling. ii. The Surrogate’s Orders are Invalid --- Valid Judgment Requirement Collateral estoppel requests, for example, that “four conditions are fulfilled”, including “a valid and final judgment on the merits”. (MPR Mol 8). As complained at ¶ 25, MPR failed to comply with SCPA § 14115 and 22 NYCRR § 207.26. In the absence of “Citation upon filling of objection”, inter alias, the Surrogate lacked jurisdiction to issue its decree on the law. See 22 NYCRR § 207.26 Contested probate; notice of objections filed provides § (c): “Since the requirements of SCPA 1411 are jurisdictional, all further pretrial procedures or proceedings shall be stayed until there is compliance with this rule.” Consequently, the orders in the following ejectment proceeding are invalid because of the invalid decree, which passed real property invalidly by the pour-over will to the trust amendment. (Ex. 1 -- Decree Granting Probate, dated 11/30/2017; Dkt. 48, Last Will Ex. 2). While the probate proceeding was pending, the following ejectment proceeding was premature. Pursuant to SCPA § 1408, Probate not allowed unless Court satisfied, “a will cannot be admitted to probate by default or even upon the consent of the parties.” See 26 Carmody-Wait 2d § 152:74 p. 348 v. 2010. “[A] revocable trust is effectively a will 4 11 of 29 FILED: SUFFOLK COUNTY CLERK 07/05/2023 08:40 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 07/05/2023 substitute.” 2 Harris N.Y. Estates: Probate Admin. & Litigation, § 25:27 (6th ed.). Thus, trust amendments, will substitutes, cannot be admitted by default in the Surrogate. A default order, even an order, is not a judgment as defined clearly by the statutes, such as RPAPL § 747 Judgment, CPLR 411 Judgment, CPLR 5011 Definition and content of judgment, and CPLR 2220 Entry and filing of order. “A decision upon which no formal judgment has been entered is ineffective as a bar to subsequent proceedings.” Sage Realty Corp. v. Proskauer Rose L.L.P., 251 A.D.2d 35, 39 (1st Dept. 1998) (citation omitted); “For a collateral estoppel to operate, the material facts of questions in issue must have been judicially determined and conclusively settled by a judgment rendered in the action.” Fleischer v. Uccelini, 81 Misc. 2d 22 (First Dist., Nassau County 1975). --------------------------------------------- 5 SCPA § 1411. Citation upon filing of objections in pertinent part: 2. The citation shall be submitted by the proponent to the court within thirty days after the filing of objections. If the proponent fails to submit the citation, the citation may be submitted by an objectant or any other interested person. iii. The Surrogate’s Orders Are Not Final --- Finality Requirement As “a valid and final judgment on the merits” cited previously indicates that finality is a prerequisite to applying for the doctrine. See, e.g., Kremer, supra. In fact, the ejectment proceeding has never issued a final judgment/decree in the Surrogate. It is “pending under index No. 2017-778/B.” (Dkt. 13, Jablonsky Mol at 1). Xu’s appeal is still pending to re-argue or leave to appeal to the Court of Appeal for Matter of Van Zwienen, 202 A.D.3d 802 (2d Dept 2022). See Lehman Brothers v. Hughes Hubbard & Reed, LLP, 92 N.Y.2d 1014, 1016 (1998) (Where a dismissal of an action is appealable as a matter of right, the action is not terminated; and the six-month period does not begin to run until that appeal is exhausted.) While the appeal is pending, applying the preclusion doctrine does not meet procedural due process. It implies that the outcome of the appeal has no weight. However, an appellate review is one demand of due process - “Right 5 12 of 29 FILED: SUFFOLK COUNTY CLERK 07/05/2023 08:40 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 07/05/2023 to appellate review.” In re Gault, 387 U.S. 1, 10 (1967). iv. MPR Is Neither a Party Nor In Privity In The Surrogate --- Party Requirement “No person may be bound by a judicial direction unless he has been served with process.” In re Estate of Smith, 24 N.Y.S.2d 704, 710 (Sur. Ct. Kings Cnty 1940). Unquestionably, MPR has never been served with the citation in the Surrogate. MPR has neither the right to appeal the Surrogate’s orders nor to be bound by them. “[O]ne lacks standing to challenge a judgment adjudicating a claim to which it was not a party.” St. Paul Fire Ins. v. Univ. Builders Supply, 409 F.3d 73, 83 (2d Cir. 2005); “The general rule [is] that one who is not a party or has not been treated as a party to a judgment has no right to appeal therefrom.” Lance v. Dennis, 546 U.S. 459, 464 (2006). “It was in no position to ask this Court to review the state court's [order] and has not directly attacked it in [the Surrogate] proceeding.” Johnson v. DeGrandy, 512 U.S. 997, 1006 (1994). “Mr. Justice Lurton said: ‘What is privity? As used when dealing with the estoppel of a judgment, privity denotes mutual or successive relationship to the same right of property’” In re Estate of Smith, 24 N.Y.S.2d 233, 238 (Sur. Ct. Kings Cnty. 1940). Undoubtedly, MPR has no right to the property. In the Surrogate, MPR did not represent Van Zwienen in his capacity as an individual sued here, either. See Hoblock v. Albany Cnty. Bd of Elect, 422 F.3d 77, 90-91 (2d Cir. 2005), infra: The Supreme Court has explained that a nonparty can be bound by the results of someone else's litigation “when, in certain limited circumstances, a person, although not a party, has his interests adequately represented by someone with the same interests who is a party.”....And as Wilks explained, where a nonparty controls a party, identity of interest and adequacy of representation suffice to create privity between nonparties and parties to an earlier suit. The Surrogate also lacks jurisdiction over MPR because MPR is a living person, like the County, has no interest in the property or estate. See Matter of Juan C. v. Cortines, 89 N.Y.2d 659, 666 (1997) § II.A (The court agreed, inter alia, that appellants were not parties or privity in the family court proceeding. The collateral estoppel did not apply.). 6 13 of 29 FILED: SUFFOLK COUNTY CLERK 07/05/2023 08:40 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 07/05/2023 v. Issues Decided by Default --- Not a Full and Fair Opportunity to Litigate “Van Zwienen was the legal Successor Trustee” as decided by the Surrogate that bars Xu’s refutation herein, which defendants contend and the Court has agreed. (e.g., MPR Mol 11 , Dkt. 120, 122, Orders at 4). “Petitioner, Raymond E. Van Zwienen, is.... the successor trustee of the William H. Van Zwienen Revocable Trust” that is the first sentence of the February Order. It reflects that Van Zwienen being the successor trustee was not actually litigated. The February Order, sua sponte, by default, was affirmed by the April Order. “An issue is not actually litigated if, for example, there has been a default.” Kaufman v. Eli Lilly & Co., 65 NY2d 449, 456-457 (1985); “In the case of a judgment entered by confession, consent, or default, none of the issues is actually litigated, and therefore, the principle of issue preclusion does not apply with respect to any issue in a subsequent action.” Restatement (Second) of Judgments § 27 at 257 (1982) (emphasis added), cited by Arizona v. California, 120 S.Ct. 2304, 2318 (2000), supplemented on other grounds, 121 S.Ct. 292 (2000). As noted supra and infra, the Surrogate lacked the jurisdiction to go forward with the prior probate proceeding. Consequently, all orders and the decree in the prior probate proceeding are invalid. Thus, trying to rely on the erroneous assertions regarding the probate proceeding 6 in the April Order cannot be successful, even assuming that the ejectment proceeding is not invalidated while the probate pull-over Will proceeding was pending. ------------------------------------------ 6 The surrogate demonstrated judicial prejudice to Xu, the pro se respondent, by repeating, “I don’t care that you’re pro se. I told you I don’t care”, although self–representation is a constitutional right. (Ex. 2 -- Excerpt from the Transcript on 6/29/2017). vi. Issue of the Fraudulent Successor Trustee Not Raised and Decided -- Identical Issue Requirement The issue of whether Van Zwienen has been the fraudulent successor trustee was never raised in the Surrogate shown by record. Consequently, it was not actually litigated, considered, and decided. No orders either asserted or decided the fraud issue. (e.g., Dkt. 82 - 89, Orders Ex. E - L; Ex. 3 -- Xu Aff., dated 2/24/2018; Ex. 4 -- Xu Mol, dated 7 14 of 29 FILED: SUFFOLK COUNTY CLERK 07/05/2023 08:40 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 07/05/2023 2/24/2018; Ex. 5 -- Parkas’s affirmation, dated 3/13/2018). It was impossible for Xu to raise the issue of the fraudulent successor trustee in that proceeding because private defendants successfully deceived her and the Surrogate at that time. (e.g., Compl. ¶¶ 26, 27, 29 - 33; Ex. 5 [1] -- Notice to Quit and Vacate Real Property, dated 8/21/2017; Ex. 5 [2] -- Letter from Parkas to Xu, dated 9/7/2017; Dkt. 81, Pet. Ex. D). Prior to the April order, Parkas had affirmed Van Zwienen being the first successor trustee under the 2013 First Amendment and the six-month limitation for Xu residing in her home after decedent’s death under the 2014 Second Amendment. Parkas intentionally had not affirmed, or mentioned, that Xu has been the legal successor trustee confirmed by the Second Amendment. (e.g., Ex. 5 ¶¶ 9, 10; Xu Aff. ¶¶ 6-9; Sec. Amd. at Third). vii. Issues Decided on the Ground of the Fraud Lacking Standing Defendants also contend that Van Zwienen was entitled to possession of the property as decided by the Surrogate, which precludes Xu’s disputation herein. However, that ruling was decided on the fraud ground of Van Zwienen being the legal successor trustee. Under CPLR 5015(a)(3), a court may overturn a prior judgment or order on the grounds of fraud, misrepresentation, or other misconduct of an adverse party. Rooker-Feldman will not apply where plaintiff's claims “‘speak not to the propriety of the state court judgments, but to the fraudulent course of conduct that defendants pursued in obtaining such judgments.’” Sung Cho v. City of New York, 910 F.3d 639, 645-646 (2d Cir. 2018) (quoting Sykes v. Mel S. Harris and Assocs., LLC, 780 F.3d 70, 94-95 [2d Cir. 2015]); “To the extent Vossbrinck's pro se complaint can be liberally construed as asserting fraud claims that are not barred by Rooker–Feldman—because they seek damages from Defendants for injuries Vossbrinck suffered from their alleged fraud,, ......”. Vossbrinck v. Accredited Home Lenders, Inc., 773 F.3d 423, 427-428 (2d Cir. 2014). Accordingly, defendants’ contention is unavailing. 8 15 of 29 FILED: SUFFOLK COUNTY CLERK 07/05/2023 08:40 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 07/05/2023 viii. The Surrogate Is A Limited Judiciary Forum Schwartz v. Public Adm’r of Bronx County, 24 N.Y.2d 65, 71 (1969) has instructed the various elements to consider applying the preclusion, including the forum of the prior litigation. No question, the ejectment proceeding is a special proceeding. A Surrogate is a limited judiciary forum that significantly distinguishes a Supreme Court, which may adjudicate the full relief sought for living parties. “In addition, the issue that was previously decided must be decisive in this action; that is, it must ‘prove or disprove … an essential element of any of the claims set forth in the complaint.’" Jordan v. Cayuga County, 2004 U.S. DIST. LEXIS 1666, *22 (N.D.N.Y. 2004) (citation omitted). “As Justice Potter Stewart has stated several times, ‘Fairness is what justice really is.’ D. Shrager and E. Frost, The Quotable Lawyer § 71.68 at 158 (1986).’” U.S. v. Davis, 39 M.J. 281, 283 (C.M.A. 1994). Justice Stewart’s words are proven in this case by applying the preclusion doctrine, which is neither fair nor just. For the foregoing reasons, all defendants’ motions must be denied in this regard. IV. The Documentary Evidence Supports Xu’s Claim MPR relied on the Surrogate’s orders as documentary evidence to rebut Xu’s claims. (MPR Mol. 11-12). On the contrary, the orders reflect that at the outset, private defendants just successfully deceived Xu and the Surrogate, as the fraudulent successor trustee. (e.g., Pet.; Trust; Sec. Amd Trust; Feb. & Apr. Orders). In contrast to their contention, the April Order shows that the Surrogate addressed Van Zwienen only being the executor fiduciary raised by Xu, not the trustee. (April Order at 6; Ex. 3, 4). MPR also contends that its representation lacked authority, refuted by Xu. (Compl. ¶ 24). The erroneously invalid order proves that Parkas did not “furnish acknowledged evidence of 9 16 of 29 FILED: SUFFOLK COUNTY CLERK 07/05/2023 08:40 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 07/05/2023 authority” in the absence of the Surrogate’s directive first. Its ruling was based on the representation in the prior contested probate proceeding. However, “[t]he attorney must obtain this authorization for each proceeding in which the attorney appears for the client. This requirement protects the court's order or decree by ensuring that the court has obtained personal jurisdiction over all parties.” SCPA § 401 Commentary, “How an Adult Competent Party Appears in Surrogate's Court” (emphasis added). Undeniably, Parkas6 initially appeared in the first probate proceeding on 5/1/2017 by notice of appearance, i.e., no proof of authority for a star. (Ex. 7 -- Parkas Notice of Appearance, dated 5/1/2017). “Notice of appearance had to be accompanied by properly executed writing by nonresident party authorizing appearance of attorneys and an appearance not so supported was stricken out.” In re Lehmeyer’s Estate, 204 N.Y.S. 767 (Sur. Ct. N.Y. Cnty. 1924). The Surrogate also relied on Van Zwienen’s signature in the petition. Squarely, Van Zwienen, a non-domiciliary, has been governed by a specific law 8, for his appearance in the Surrogate. Relying on the pleadings for an appeal in the Surrogate is applicable to only a domiciliary. As discussed supra, citation upon the filing of objections was never filed in the probate proceeding. 9 “The provisions of SCPA 1411 requiring the serving and filing of a notice of objections are jurisdictional. Because the requirements are jurisdictional Rule 207.26 provides that all further pre-trial procedures or proceedings shall be stayed until there is compliance.” Estate of Sydney Velor Davis, 1994 NYLJ LEXIS 8506, *3 (Sur. Ct. Queens Cnty. 1994). The April Order at 2 reveals that MPR misled the Surrogate to go forward with the probate proceeding. (Compl. ¶ 25). For example, MPR “cross-moved for sanctions” “requesting that the court strike the objection to probate” after Xu “moved to re-argue or vacate the pretrial order.”. 10 17 of 29 FILED: SUFFOLK COUNTY CLERK 07/05/2023 08:40 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 07/05/2023 Notably, at this initial stage, Xu is not required to submit evidence. But she does provide documentary evidence that affirmatively supports her positions. The motions must be denied in this respect. ----------------------------------------------------- 7 Decedent never knew Parkas and his firm. 8 22 NYCRR § 207.9 Appearances in pertinent part: b) Unless otherwise directed by the Surrogate, attorneys appearing on behalf of nondomiciliaries or parties not personally served within the State must furnish acknowledged evidence of authority pursuant to SCPA 401. 9 22 NYCRR § 207.26 Contested probate; notice of objections filed: (a) Objections to probate of a will shall be filed and served with proof of service in conformity with SCPA 1410. (b) Within thirty days of the filing of objections, the proponent shall present a citation in accordance with section 1411 of the SCPA. If the proponent fails to timely present such citation or, having presented it, fails to have it issued by the court, the objectant or any other person interested may present such citation to be served pursuant thereto. (c)........ (See supra) Pursuant to the above, the proponent, Van Zwienen, was mandated to serve and file it. It is optional for Xu to do. Because the petition, including the addresses of Van Zwienen’s siblings, was never served to Xu, she could not do it anyway. 11 18 of 29 FILED: SUFFOLK COUNTY CLERK 07/05/2023 08:40 PM INDEX NO. 206004/2022 NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 07/05/2023 V. Xu Sufficiently States a Cause of Action A. Fraud Claim MPR contends that Xu failed to plead with specificity pursuant to CPLR 3016(b) and Judiciary Law § 487. (MPR Mol 12-15). On the face of the complaint, Xu detailed who, when, where, what, and how the private defendants deceived. (Compl. § III & IV). MPR’s own assertion rebuts its conclusion. For example, it notices that Xu “asserts repeatedly in her complaint that Van Zwienen was not the Successor Trustee. (See Ex. [V], ¶¶ 27, 29, 31, 33, 37, and 38)”. (MPR Mol 11). MPR specifies complaint ¶ 27 in support of its assertion. MPR wholly ignores that decedent designated Xu “as his successor trustee” (Comp. ¶ 4) and Van Zwienen “as the fraudulent successor trustee in decedent’s passive (dry) trust.” (Compl. ¶ 26). It also fully ignores that decedent bequeathed his tangible personal property “to be divided among them in such manner as they shall agree upon.” The tangible personal property was not equally divided by the Will. (Compl. ¶ 34; Dkt. 48, Last Will). These examples specify that MPR’s statements were false. Further, MPR challenges that Xu “did not identify the purported ‘controlling legal authority’”. (Compl. ¶ 42). On the other hand, MPR notices Compl. ¶¶ 24, 25. As discussed supra, MPR failed to serve and submit the citation of objections as well as proof of authority from Van Zwienen while it pushed forward with the probate proceeding. Parkas, a top-rated estate & trust 10. litigation attorney, was selected to Super Lawyers for 2015 - 2023. Of course, he had knowledge of such things as SCPA § 1411 and 22 NYCRR 207.26, while Xu, the pro se litigant, did not know those at that time. Furthermore, the petition, signed by Parkas, “prays for a decree,” including “issuing a warrant for her removal from possession of the real property”. Although the Surrogate did 12 19 of 29 FILED: SUFFOLK COUNTY CLERK 07/05/2023 08:40 PM