Case 1:11-cv-02870-LBS -JCF Document 57

Filed 07/25/11 Page 1 of 7

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------------------------------------------x SANG LAN Case No. 11 CV 2870 (LBS)(JCF)

Plaintiff,

Attorney Ming Hais Affirmation In Opposition to Defendants Motion To Dismiss

- against KAO SUNG LIU aka K.S. LIU (CHINESE NAME ), GINA HIU-HUNG LIU (CHINESE NAME ), HUGH MO ( , JOHN DOES AND JANE DOES # 1 THROUGH 15, INCLUSIVE

Defendants. --------------------------------------------------------------------- X Ming Hai, an attorney duly admitted to practice in the courts of the State of New York, and the Southern District of Federal Court, affirms as follows: I am an attorney of the Law Office of Ming Hai, PC, attorneys for the plaintiff and am fully familiar with all of the papers and proceedings in this litigation and with all the facts and circumstances set forth.

Motion to Dismiss Standard A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b) (6) may be granted only "if it appears beyond doubt that the plaintiff can prove no set of facts in

Case 1:11-cv-02870-LBS -JCF Document 57

Filed 07/25/11 Page 2 of 7

support of his claim which would entitle him to relief." Hamilton Ch. of Alpha Delta Phi v. Hamilton College, 128 F.3d 59, 63 (2d Cir. 1997) (quoting Conley v. Gibson. 355 U.S. 41, 46(1957). In determining a motion to dismiss under Rule 12(b) (6) the Court must presume all factual allegations of the complaint to be true and make all reasonable inferences in favor of the non-moving party. Id. As demonstrated in plaintiffs affidavit and attached exhibits, plaintiff has sufficient evidentiary support for her claims. It is well established that pleadings have been informalized by the law; the Motion to Dismiss for failure to state a claim is used to attack the merits of the claims than to attack its articulation. The will be deemed to allege whatever may be implied from its statements by reasonable intendment. As long as the complaint as a whole manifests a claim/cause of action recognizable under the law, it is of no moment that the wrong relief was asked for. State v. Ole olsen, Ltd. 38 AD 2d 967. 331 NYS 2d 761 (2d Dept. 1972). If there are several claims alleged, and any one of them is sufficient, a Dismissal Motion aimed at the whole pleading will be denied in its entirety. Griefer v. Newman, 22 AD2d 696, 253 NYS 2d 791 ( 2d Dept. 1964) . Defendants have attached several previous versions of the complaint, which have been replaced and substituted by the 3rd amended complaint as attached hereof, and should be disregarded as moot and irrelevant. Defendants conclusarily denied all the allegations, challenging the facts alleged in the complaint without the attachments of any defendants affidavit. For Motion to Dismiss purpose, the burden is really on the defendants to show documentary evidences to prove that plaintiff does not have a case on its face of the complaint. Defendants have failed by disputing every single fact in their Motion with no supporting evidences at all.

Case 1:11-cv-02870-LBS -JCF Document 57

Filed 07/25/11 Page 3 of 7

Point I Plaintiffs Claims are NOT Barred by the Statute of Limitations I. The Continuing Violation Doctrine The United States Supreme Court in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002) differentiated between discrete acts and continuing violations, noting that some discrete acts are easy to identify and that [e]ach [such] incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable unlawful employment practice. On the other hand a continuing violation [is] a series of separate acts that collectively constitute one unlawful employment practice Such a cause of action accrues on the date on which the last component act occurred. (Internal quotation marks omitted). In Shepherd v. Hunterdon Developmental Center, 174 N.J. 1, 21(2002), the continuing violation theory was applied to a pattern or series of acts, any one of which may not be actionable as a discrete act, but when viewed cumulatively constitute a hostile work environment[.] In such a case, the cause of action would have accrued on the date on which the last act occurred, notwithstanding that some of the component acts of the hostile work environment [have fallen] outside the statutory time period. Defendants have wrongfully asserted that all underlying facts in plaintiffs claims occurred 12 years ago. Although plaintiff was injured in 1998 and returned to China in 1999, the act/non-action by defendants that give rise to the claims happened on or about the end of 2008 and thereafter. The Sang Lan Fund was established in 1999, but defendants have exercised dominion and control of said funds and misappropriated said fund until the end of 2008, when defendants finally transferred the fund to Sang Lan in

Case 1:11-cv-02870-LBS -JCF Document 57

Filed 07/25/11 Page 4 of 7

China. Sang Lans other personal properties are still held hostage by defendants up to present time, even due demands were made. Defendants and plaintiff have met in summer of 2008 in New York, and have also met in China many times thereafter, and have been in contacts on the phone, emails and other means regarding the issues raised in this action, throughout the past 13 years until early of 2011 after the instant action was commenced. Thus, the claims for conversion, unjust enrichment and breach of fiduciary duties as fund manager, legal advisor are well within the statute of limitation. Underlying facts to support claims for defamation, infliction of extreme emotional distress are all happened in early of 2011. Invasion of privacy/ violation of New York Civil Rights Acts are ongoing until the commencement of this action, as defendants never stopped to use plaintiffs name and images in their trade and business for the past many years. For breach of promises/ detrimental reliance, defendants have admitted that they made such promises and performed until some time after 2008. Defendants

unilateral withdrawing of their promised support was without justification and happened after 2008. As a matter of fact, defendants in early 2011 have promised to pay for Sang Lans 2011 trip to the United States and pay for her boarding in New York , but have failed to do so.

II. The "Discovery of Harm" Rule Only shortly before and after this action was commenced, plaintiff discovered that defendants have lied to her regarding the Sang Lan Fund and Sang Lans insurance

Case 1:11-cv-02870-LBS -JCF Document 57

Filed 07/25/11 Page 5 of 7

coverage and expenses, which have been exclusively controlled and misrepresented by defendants for the past 12 years, while plaintiff lived in China on a wheelchair.

Point II Plaintiffs Claims have established all necessary elements. Plaintiffs own affidavit along with attached exhibits shows that plaintiffs claims have merits and evidentiary support; further discovery will only aid plaintiffs case.

Point III Plaintiffs Motion to Amend the Complaint shall be granted Plaintiffs most recent 2nd Motion for Leave to amend the complaint has no new claims/cause of action added, but merely to refine the language and necessary elements for the existing claims which have been alleged in the previous complaint. On or about June 13th, 2011, Plaintiff submitted her first Motion to Amend the complaint. Defendants through counsel Hugh Mo consented to that amendment in a letter dated June 13, 2011, and the court has ruled that the Amended Complaint was granted through no opposition by defendants (Exhibit O.). It is exactly the same claims then and now , except for better wording and expressions. As defendants have waived their opposition to the 1st Motion to amend the complaint, defendants cannot now change their mind to oppose it under the Doctrine of Equitable Estopple, because they are the same claims/cause of actions.

Point IV

Case 1:11-cv-02870-LBS -JCF Document 57

Filed 07/25/11 Page 6 of 7

The Jurisdiction Issues

Defendant Hugh Mo has admitted that he was properly personally served.

KS Liu and Gina Liu have deliberately evaded service, but they were eventually served by licensed professional process server. (See Exhibit P). Further, defendants KS and Gina Liu have admitted that they were served and aware of the lawsuit in their own blogs many times. (Exhibit D of Plaintiff Sang Lan Affidavit) Plaintiffs damages exceeds seventy five thousands dollars as the loss of insurance and money lost in Sang Lan Fund alone exceeds that amount. Further, assuming without admission, if there is a subject matter jurisdiction issues, the case shall be transferred to State Court, not a dismissal. Conclusion Defendants also raised many other unrelated matters which are prejudicial to the plaintiff and plaintiffs attorney, which shall be disregarded by the court. Defendants conclusarily denied all the allegations, challenging the facts alleged in the complaint without the attachments of any defendants affidavit. For Motion to Dismiss purpose, the burden is really on the defendants to submit documentary evidences to prove that plaintiff does not have a case on its face of the complaint. Defendants have failed by disputing every single fact in their Motion with no supporting evidences at all. For the reasons stated above, defendants motions must be denied by the Court. Dated: FLUSHING, New York July 22nd , 2011 LAW OFFICE OF MING HAI, PC

Case 1:11-cv-02870-LBS -JCF Document 57

Filed 07/25/11 Page 7 of 7

By:____________________MingHai Attorneys for Plaintiff,

36-09 MAIN ST. SUITE FLUSHING, NY 11354, (718) 445-9111 Email : lawminghai@yahoo.com