Citibank, N.A. v. Bravo

Appellate Division of the Supreme Court of New York

Citibank, N.A. v. Bravo

140 A.D.3d 1434, 34 N.Y.S.3d 678

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 16, 2016

Docket521651

StatusPublished

Cited by5 cases

This text of 140 A.D.3d 1434 (Citibank, N.A. v. Bravo) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Citibank, N.A. v. Bravo, 140 A.D.3d 1434, 34 N.Y.S.3d 678 (N.Y. Ct. App. 2016).

Pincite

Opinion

*1435 Lahtinen, J.P.

Appeal from an order of the Supreme Court (Mulvey, J.), entered December 2, 2014 in Tompkins County, which granted a motion by defendants David Cullen Bravo and Christine Bravo Cullen to preclude plaintiff from offering proof of indebtedness.

In June 2013, plaintiff commenced this foreclosure action on residential real property — mortgaged in January 2008 for about $82,600 — owned by defendants David Cullen Bravo and Christine Bravo Cullen (hereinafter collectively referred to as defendants) in the Town of Dryden, Tompkins County. Defendants answered asserting, among other things, that plaintiff was not the holder of the note. After a series of delays resulting primarily from conduct by plaintiff and its attorneys which prompted two preclusion motions by defendants, Supreme Court granted the second preclusion motion in December 2014. The court precluded plaintiff from offering proof of indebtedness as alleged in the complaint. Plaintiff appeals.

“Where a trial court determines that a party has failed to comply with its discovery obligations, it has broad discretion to remedy the violation” (BDS Copy Inks, Inc. v International Paper, 123 AD3d 1255, 1256 [2014]). “Despite a general policy favoring resolution of disputes on the merits, this Court will not disturb a trial court’s choice of remedy absent a clear abuse of discretion” (Doherty v Schuyler Hills, Inc., 55 AD3d 1174, 1176 [2008] [citation omitted]). A pattern of noncompliance and delay can give rise to an inference of willfulness (see Hameroff & Sons, LLC v Plank, LLC, 108 AD3d 908, 909 [2013]; Hesse Constr., LLC v Fisher, 61 AD3d 1143, 1144 [2009]; Robinson Saw Mill Works v Speilman, 265 AD2d 604, 606 [1999]). Here, among other things, plaintiff refused to appear for a deposition, canceled depositions at the last minute, missed a CPLR 3408 court-ordered mandatory conference, failed to comply with a court-ordered deposition deadline, and created confusion and delay with an inadequate and unclear effort to substitute counsel. With respect to plaintiff’s contention that it had the right as a corporation to determine who it would initially produce for a deposition, we note that defendants specifically named in their May 2014 demand the person who had executed an affidavit regarding the note and plaintiff failed to comply with the statutory requirement to, “no later than [10] days prior to the scheduled deposition, notif[y] [defendants] that another individual would instead be produced and the identity, description or title of such individual” (CPLR 3106 [d]; see Hendrick Hudson Cent. School Dist. v Falinski, 232 AD2d 454, 455 [1996]; Weinstein-Korn-Miller, NY Civ Prac ¶ *1436 3106.17 [2d ed 2014]; cf. Barnwell v Emigrant Sav. Bank, 81 AD3d 518, 518 [2011]). Instead of giving timely notice to defendants, seeking a protective order or even producing a person it deemed knowledgeable (cf. E & M Adv. West / Camelot Media, Inc. v Vertical Lend, Inc., 45 AD3d 502, 502 [2007]), plaintiff simply refused to produce the named individual resulting in the failure to comply with the court-ordered date for conducting the deposition. Under the entirety of the circumstances, we are unpersuaded that Supreme Court improvidently exercised its discretion.

Rose, Lynch, Clark and Aarons, JJ., concur.

Ordered that the order is affirmed, with costs.

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*1435 Lahtinen, J.P.

Appeal from an order of the Supreme Court (Mulvey, J.), entered December 2, 2014 in Tompkins County, which granted a motion by defendants David Cullen Bravo and Christine Bravo Cullen to preclude plaintiff from offering proof of indebtedness.

In June 2013, plaintiff commenced this foreclosure action on residential real property — mortgaged in January 2008 for about $82,600 — owned by defendants David Cullen Bravo and Christine Bravo Cullen (hereinafter collectively referred to as defendants) in the Town of Dryden, Tompkins County. Defendants answered asserting, among other things, that plaintiff was not the holder of the note. After a series of delays resulting primarily from conduct by plaintiff and its attorneys which prompted two preclusion motions by defendants, Supreme Court granted the second preclusion motion in December 2014. The court precluded plaintiff from offering proof of indebtedness as alleged in the complaint. Plaintiff appeals.

“Where a trial court determines that a party has failed to comply with its discovery obligations, it has broad discretion to remedy the violation” (BDS Copy Inks, Inc. v International Paper, 123 AD3d 1255, 1256 [2014]). “Despite a general policy favoring resolution of disputes on the merits, this Court will not disturb a trial court’s choice of remedy absent a clear abuse of discretion” (Doherty v Schuyler Hills, Inc., 55 AD3d 1174, 1176 [2008] [citation omitted]). A pattern of noncompliance and delay can give rise to an inference of willfulness (see Hameroff & Sons, LLC v Plank, LLC, 108 AD3d 908, 909 [2013]; Hesse Constr., LLC v Fisher, 61 AD3d 1143, 1144 [2009]; Robinson Saw Mill Works v Speilman, 265 AD2d 604, 606 [1999]). Here, among other things, plaintiff refused to appear for a deposition, canceled depositions at the last minute, missed a CPLR 3408 court-ordered mandatory conference, failed to comply with a court-ordered deposition deadline, and created confusion and delay with an inadequate and unclear effort to substitute counsel. With respect to plaintiff’s contention that it had the right as a corporation to determine who it would initially produce for a deposition, we note that defendants specifically named in their May 2014 demand the person who had executed an affidavit regarding the note and plaintiff failed to comply with the statutory requirement to, “no later than [10] days prior to the scheduled deposition, notif[y] [defendants] that another individual would instead be produced and the identity, description or title of such individual” (CPLR 3106 [d]; see Hendrick Hudson Cent. School Dist. v Falinski, 232 AD2d 454, 455 [1996]; Weinstein-Korn-Miller, NY Civ Prac ¶ *1436 3106.17 [2d ed 2014]; cf. Barnwell v Emigrant Sav. Bank, 81 AD3d 518, 518 [2011]). Instead of giving timely notice to defendants, seeking a protective order or even producing a person it deemed knowledgeable (cf. E & M Adv. West / Camelot Media, Inc. v Vertical Lend, Inc., 45 AD3d 502, 502 [2007]), plaintiff simply refused to produce the named individual resulting in the failure to comply with the court-ordered date for conducting the deposition. Under the entirety of the circumstances, we are unpersuaded that Supreme Court improvidently exercised its discretion.

Rose, Lynch, Clark and Aarons, JJ., concur.

Ordered that the order is affirmed, with costs.

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140 A.D.3d 1434, 34 N.Y.S.3d 678, Counsel Stack Legal Research, https://law.counselstack.com/opinion/citibank-na-v-bravo-nyappdiv-2016.

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