Preview
FILED: ROCKLAND COUNTY CLERK 04/12/2024 02:58 PM INDEX NO. 035608/2023
NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 04/12/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ROCKLAND
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LAVERN McKENZlE, KAREN OCHIENG, SASHA VILLALONA,
VALRIE BROUGHTON, LORY JEROME,
SHAYNA McKENZlE, BYA BAH, Index No: 035608/2023
CINDY ROBWSON, YVETTE DUNCAN and
SHERNAT STEWART,
Plaintiffs REPLY AFFIRMATION
IN SUPPORT OF THE
MOTION TO DISMISS
-against-
KIM CHAMPION, STANLEY LORMESTIL,
DEBORAH FRANCIS, ZAKlYYAH SALEEM, RACHEL
BELIZAIRE, MARCIA TAYLOR, KAREFUL AND
KAREFREE TRAINING SCHOOL IN NEW YORK CITY INC.
Defendants
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STATE OF NEW YORK )
)ss.:
COUNTY OF KINGS )
I, Earl Antonio Wilson, Esq., an attorney duly admitted to practice before the Courts of the State
of New York, say under penalty of perjury that:
1. I am the attorney of record for the defendant ZAKIYYAH SALEEM in the above-captioned
matter, and as such, am fully familiar with the facts and circumstances therein.
2. I make this Reply Affirmation in further support of the Motion to Dismiss pursuant to CPLR
3211(a)(2)(8) and CPLR 308, CPLR §§ 3211(a)(1) and 3211 (a)(7); and, for an Order:
a. Dismissing the Summons and Complaint for lack of personal and subject matter
jurisdiction;
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b. Granting a traverse hearing on the lack of merits of the alleged service of the Summons
and Complaint if necessary;
c. Awarding the defendant Saleem attorney fees and costs for defending this action under
Common Law, and Judiciary Law 22 NYCRR 130-1.1;
d. In the alternative, accepting the Proposed Answer with Affirmative Defenses and deeming
it served on the plaintiffs (See Exhibit B for a copy of the Proposed Answer);
3. The plaintiffs should not be allowed to create inferences and misrepresentations just based on
association. Defendant Saleem is entitled to her Affirmative Defenses pursuant to CPLR 3018(b)
but that may not be enough if the allegations affect her livelihood as they have already.
4. Moreover, the alleged fraud claim in the Summons and Complaint does not qualify under
CPLR 3016(b): “Fraud or mistake. Where a cause of action or defense is based upon
misrepresentation, fraud, mistake, wilful default, breach of trust or undue influence, the
circumstances constituting the wrong shall be stated in detail.”
5. According to Black’s Law Dictionary, Fraud, an intentional tort or breach is defined as:
Fraud consists of some deceitful practice or willful device, resorted to with intent
to deprive another of his right, or in some manner to do him an injury. As
distinguished from negligence , it is always positive, intentional ….Fraud, as
applied to contracts, is the cause of an error bearing on a material part of the
contract, created or continued by artifice, with design to obtain some unjust
advantage to the one party, or to cause an inconvenience or loss to the other. …
Fraud, In the sense of a court of equity , properly Includes all acts, omissions, and
concealments which involve a breach of legal or equitable duty, trust, or
confidence justly reposed, and are injurious to another, or by which an undue and
unconscientious advantage is taken of another…. See
https://alegaldictionary.com/fraud - Black’s Law Online Dictionary
6. There is no detail based on association with another fraudulent individual or anything in the
complaint that meets the tenets of fraud. Conclusions, inferences and complaints to a former
employer that led to termination is all that occurred here.
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7. The alleged evidence submitted in plaintiffs’ Exhibit 3 is based on a subjectively flawed
“investigation” under an employment at will process of NY Presbyterian Hospital.
8. The rampant and prejudicial hearsay and double hearsay in their Investigation Memo in
Exhibit 3 (NYSCEF Doc. # 60) should be ignored as insubstantial, especially in light of the
employment at will statutes which exist in New York.
9. It is common knowledge that New York is an employment at-will state, meaning that both an
employer and an employee may end an employee’s employment at any time for any reason, with
or without cause or notice, subject to any agreed-on contractual limitations and in compliance
with applicable laws (e.g., anti-discrimination laws and Civil Rights laws). This applies whether
an employee voluntarily leaves their job or the employer terminates the employee’s employment.
See N.Y. Labor Law §§ 215 and 740.
10. It is also extremely prejudicial to Ms. Saleem to have provocative accusations publicly aired
in this forum against her that are inaccurate.
11. Ms. Saleem has been a caring, dedicated Nurse for 30 years, upon information and belief, and
can ill afford additional distress caused by others, especially as seen by those who would make
presumptions like prospective employers are known to do.
12. At some point, defendant Kim Champion attempted to clarify the role of Ms. Saleem. She
prepared a notarized letter on behalf of Ms. Saleem. That letter is attached as Exhibit F. See also
the Affidavit of Ms. Saleem which offers some details about the misrepresentations.
13. Since the extension was granted to the defendant for this Reply, the issue of the RICO
violations was still on the table.
14. This court ruled against the plaintiffs on that issue but we have attached a Reply
Memorandum addressing the issue from our perspective in any event.
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WHEREFORE, defendant Saleem again requests that the court grant the Motion in its
entirety and for such other and further relief as this court deems just and proper.
No prior application for the relief requested herein has been made by the defendant.
Dated: Brooklyn, New York
April 11, 2024
Signature (Rule 130-1.1-a)
___/ / Ear A . Wilso ______________
Earl Antonio Wilson, Esq.
The Wilson Law Firm LLC
Attorneys for Defendant Saleem
255 Livingston Street- Fourth Floor
Brooklyn, New York 11217
Tel: 718-522-3249
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CERTIFICATION PURSUANT TO 22 NYCRR § 202.8-b
I, Earl Antonio Wilson, an attorney duly admitted to practice law before the courts of the State of
New York, hereby certify that this Reply Affirmation in Further Support of the Motion to
Dismiss complies with the word count limit set forth 22 NYCRR § 202.8-b, because it contains
770 words, excluding the parts exempted by § 202.8-b(b). In preparing this certification, I have
relied on the word count of the word-processing system used to prepare this affidavit.
/s/ Ear A . Wilso ________
Earl A. Wilson
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Preview
FILED: ROCKLAND COUNTY CLERK 04/12/2024 02:58 PM INDEX NO. 035608/2023 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 04/12/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND ----------------------------------------------------------------------------X LAVERN McKENZlE, KAREN OCHIENG, SASHA VILLALONA, VALRIE BROUGHTON, LORY JEROME, SHAYNA McKENZlE, BYA BAH, Index No: 035608/2023 CINDY ROBWSON, YVETTE DUNCAN and SHERNAT STEWART, Plaintiffs REPLY AFFIRMATION IN SUPPORT OF THE MOTION TO DISMISS -against- KIM CHAMPION, STANLEY LORMESTIL, DEBORAH FRANCIS, ZAKlYYAH SALEEM, RACHEL BELIZAIRE, MARCIA TAYLOR, KAREFUL AND KAREFREE TRAINING SCHOOL IN NEW YORK CITY INC. Defendants ---------------------------------------------------------------------------X STATE OF NEW YORK ) )ss.: COUNTY OF KINGS ) I, Earl Antonio Wilson, Esq., an attorney duly admitted to practice before the Courts of the State of New York, say under penalty of perjury that: 1. I am the attorney of record for the defendant ZAKIYYAH SALEEM in the above-captioned matter, and as such, am fully familiar with the facts and circumstances therein. 2. I make this Reply Affirmation in further support of the Motion to Dismiss pursuant to CPLR 3211(a)(2)(8) and CPLR 308, CPLR §§ 3211(a)(1) and 3211 (a)(7); and, for an Order: a. Dismissing the Summons and Complaint for lack of personal and subject matter jurisdiction; 1 of 5 FILED: ROCKLAND COUNTY CLERK 04/12/2024 02:58 PM INDEX NO. 035608/2023 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 04/12/2024 b. Granting a traverse hearing on the lack of merits of the alleged service of the Summons and Complaint if necessary; c. Awarding the defendant Saleem attorney fees and costs for defending this action under Common Law, and Judiciary Law 22 NYCRR 130-1.1; d. In the alternative, accepting the Proposed Answer with Affirmative Defenses and deeming it served on the plaintiffs (See Exhibit B for a copy of the Proposed Answer); 3. The plaintiffs should not be allowed to create inferences and misrepresentations just based on association. Defendant Saleem is entitled to her Affirmative Defenses pursuant to CPLR 3018(b) but that may not be enough if the allegations affect her livelihood as they have already. 4. Moreover, the alleged fraud claim in the Summons and Complaint does not qualify under CPLR 3016(b): “Fraud or mistake. Where a cause of action or defense is based upon misrepresentation, fraud, mistake, wilful default, breach of trust or undue influence, the circumstances constituting the wrong shall be stated in detail.” 5. According to Black’s Law Dictionary, Fraud, an intentional tort or breach is defined as: Fraud consists of some deceitful practice or willful device, resorted to with intent to deprive another of his right, or in some manner to do him an injury. As distinguished from negligence , it is always positive, intentional ….Fraud, as applied to contracts, is the cause of an error bearing on a material part of the contract, created or continued by artifice, with design to obtain some unjust advantage to the one party, or to cause an inconvenience or loss to the other. … Fraud, In the sense of a court of equity , properly Includes all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another…. See https://alegaldictionary.com/fraud - Black’s Law Online Dictionary 6. There is no detail based on association with another fraudulent individual or anything in the complaint that meets the tenets of fraud. Conclusions, inferences and complaints to a former employer that led to termination is all that occurred here. 2 of 5 FILED: ROCKLAND COUNTY CLERK 04/12/2024 02:58 PM INDEX NO. 035608/2023 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 04/12/2024 7. The alleged evidence submitted in plaintiffs’ Exhibit 3 is based on a subjectively flawed “investigation” under an employment at will process of NY Presbyterian Hospital. 8. The rampant and prejudicial hearsay and double hearsay in their Investigation Memo in Exhibit 3 (NYSCEF Doc. # 60) should be ignored as insubstantial, especially in light of the employment at will statutes which exist in New York. 9. It is common knowledge that New York is an employment at-will state, meaning that both an employer and an employee may end an employee’s employment at any time for any reason, with or without cause or notice, subject to any agreed-on contractual limitations and in compliance with applicable laws (e.g., anti-discrimination laws and Civil Rights laws). This applies whether an employee voluntarily leaves their job or the employer terminates the employee’s employment. See N.Y. Labor Law §§ 215 and 740. 10. It is also extremely prejudicial to Ms. Saleem to have provocative accusations publicly aired in this forum against her that are inaccurate. 11. Ms. Saleem has been a caring, dedicated Nurse for 30 years, upon information and belief, and can ill afford additional distress caused by others, especially as seen by those who would make presumptions like prospective employers are known to do. 12. At some point, defendant Kim Champion attempted to clarify the role of Ms. Saleem. She prepared a notarized letter on behalf of Ms. Saleem. That letter is attached as Exhibit F. See also the Affidavit of Ms. Saleem which offers some details about the misrepresentations. 13. Since the extension was granted to the defendant for this Reply, the issue of the RICO violations was still on the table. 14. This court ruled against the plaintiffs on that issue but we have attached a Reply Memorandum addressing the issue from our perspective in any event. 3 of 5 FILED: ROCKLAND COUNTY CLERK 04/12/2024 02:58 PM INDEX NO. 035608/2023 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 04/12/2024 WHEREFORE, defendant Saleem again requests that the court grant the Motion in its entirety and for such other and further relief as this court deems just and proper. No prior application for the relief requested herein has been made by the defendant. Dated: Brooklyn, New York April 11, 2024 Signature (Rule 130-1.1-a) ___/ / Ear A . Wilso ______________ Earl Antonio Wilson, Esq. The Wilson Law Firm LLC Attorneys for Defendant Saleem 255 Livingston Street- Fourth Floor Brooklyn, New York 11217 Tel: 718-522-3249 4 of 5 FILED: ROCKLAND COUNTY CLERK 04/12/2024 02:58 PM INDEX NO. 035608/2023 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 04/12/2024 CERTIFICATION PURSUANT TO 22 NYCRR § 202.8-b I, Earl Antonio Wilson, an attorney duly admitted to practice law before the courts of the State of New York, hereby certify that this Reply Affirmation in Further Support of the Motion to Dismiss complies with the word count limit set forth 22 NYCRR § 202.8-b, because it contains 770 words, excluding the parts exempted by § 202.8-b(b). In preparing this certification, I have relied on the word count of the word-processing system used to prepare this affidavit. /s/ Ear A . Wilso ________ Earl A. Wilson 5 of 5