On July 08, 2015 a
Exhibit,Appendix
was filed
involving a dispute between
The Bank Of New York Mellon F K A The Bank Of New Youk As Indenture Trustee On Behalf Of The Noteholders And The Note Insurer Of Abfs Mortgage Loan Trust 2000-4,,
and
Beniah Anokam,
Charles Anokam,
Fati Obogulo,
John Doe
"John Doe # 6 Through John Doe # 12, " The Last Seven Names Being Fictitious And Unknown To Plaintiff, The Persons Or Parties Intended Being The Tenants, Occupants, Persons Or Corporations, If Any, Having Or Claiming An Interest In Or Lien Upon The Premi,
May Anokam,
Moussa Bagawaw,
New York City Environmental Control Board,
New York State Department Of Taxation And Finance,
Solomon Mbagwu,
Theresa Brodwith
Indibidually And As Administratrix And Heir Of The Estate Of Leroy Brodwith,
United States Of America,,
for Foreclosure (residential mortgage)
in the District Court of Kings County.
Preview
FILED: KINGS COUNTY CLERK 03/25/2022 04:39 PM INDEX NO. 508445/2015
NYSCEF DOC. NO. 180 RECEIVED NYSCEF: 03/25/2022
Exhibit 2
FILED:
....- . KINGS
......,-- COUNTY
-...... -.-
CLERK 03/25/2022
--, ...., ........., 04:39 PM INDEX NO. 508445/2015
NYSCEF DOC.
NYSCEF DOC. NO.NO. 135
180 RECEIVED NYSCEF:
RECEIVED NYSCEF: 04/02/202
03/25/2022
&upreme Court of the tate of fleto Pork
$ppellate Bibigion: econb 3fubicial Bepartment
D65566
Y/htr
AD3d Submitted - November 2020
19,
REINALDO E. RIVERA, J.P.
COLLEEN D. DUFFY
VALERIE BRATHWAITE NELSON
LINDA CHRISTOPHER, JJ.
2019-02351 DECISION & ORDER
Bank of New York Mellon, etc., plaintiff,
v Theresa Brodwith, appellant, et al., defendants.
(Index No. 508445/15)
Jonathan David Bachrach, New York, NY, for appellant.
In an action to foreclose a mortgage, the defendant Theresa Brodwith appeals from
an order of the Supreme Court, Kings County (Noach Dear, J.),dated December 6, 2018. The order,
insofar as appealed from, denied that branch of that defendant's unopposed motion which was
pursuant to CPLR 3101 to direct certain disclosure on the part of the plaintiff.
ORDERED that the order is reversed insofar as appealed from, on the law and the
facts, without costs or disbursements, and that branch of the motion of the defendant Theresa
Brodwith which was pursuant to CPLR 3101 to direct certain disclosure on the part of the plaintiff
is granted.
In or around 2015, the plaintiff commenced this action against, among others, Theresa
Brodwith, individually and in her capacity as Adminstratrix and heir to the Estate of Leroy Brodwith
(hereinafter the defendant), to foreclose a mortgage which the plaintiff alleges was given by the
decedent Leroy Brodwith (hereinafter the decedent) in 2000 and encumbers certain real property
located in Brooklyn. According to an affidavit of indebtedness, sworn to by an employee of the
plaintiff's loan servicer, the decedent defaulted in making the mortgage payment due on July 20,
2008, and all payments due thereafter. The defendant interposed an answer, asserting various
affirmative defenses and, thereafter, moved, inter alia, pursuant to CPLR 3101 to direct the
deposition of the plaintiff regarding the timing of the commencement of the action more than 12
years after decedent's death and the production of the plaintiff's books and records regarding the
alleged mortgage at issue. The defendant submitted a copy of the decedent's death certificate,
evidencing that the decedent died on November 8, 2003-approximately 5 years before the alleged
February 10, 2021 Page 1.
BANK OF NEW YORK MELLON v BRODWITH
FILED: KINGS COUNTY CLERK 03/25/2022 04:39 PM INDEX NO. 508445/2015
...-- . ......- ...-.... -....,.. --, ...
, , .........,
NYSCEF
NYSCEF DOC. NO.
DOC.
NO. 180
135
RECEIVED
RECEIVED
NYSCEF:
NYSCEF:
03/25/2022
04/02/202
default and approximately 12 years before the commencement of the action. The plaintiff did not
oppose the motion. In an order dated December 6, 2018, the Supreme Court denied that branch of
the unopposed motion (hereinafter the December 2018 order). The defendant appeals.
CPLR 3101(a) provides that "[t]here shall be full disclosure of allmatter material and
proof."
necessary in the prosecution or defense of an action, regardless of the burden of "A party
them"
is entitled to choose both the discovery devices itwishes to use and the order in which to use
(Nimkoff s Central Park Plaza Assoc., LLC, 123 AD3d 679, 680 [internal quotation marks omitted]).
Here, the Supreme Court should have granted that branch of the defendant's motion
which was pursuant to CPLR 3101 to direct disclosure. Contrary to the court's determination, the
defendant did not default in answering the complaint (see generally Jeffers v Stein, 99 AD3d 970,
97.1). Moreover, the plaintiff failed to oppose the motion and never moved to vacate itsdefault; thus,
sponte"
"the court should not have raised the issue sua (Wells Fargo Bank, N A. v Morales, 178
AD3d 881, 883 ; see Emigrant Mtge. Co., Inc v Fisher, 90 AD3d 823, 824-825).
Accordingly, we reverse the December 2018 order insofar as appealed from.
RIVERA, J.P., DUFFY, BRATHWAITE NELSON and CHRISTOPHER, JJ.,concur.
SUPREME COUn. STATE 0F NEW YORK ENTER:
APPELLATE DMSION SECOND DEPT. ha
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February 10, 2021 Page 2.
BANK OF NEW YORK MELLON v BRODWITH
Preview
FILED: KINGS COUNTY CLERK 03/25/2022 04:39 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 180 RECEIVED NYSCEF: 03/25/2022 Exhibit 2 FILED: ....- . KINGS ......,-- COUNTY -...... -.- CLERK 03/25/2022 --, ...., ........., 04:39 PM INDEX NO. 508445/2015 NYSCEF DOC. NYSCEF DOC. NO.NO. 135 180 RECEIVED NYSCEF: RECEIVED NYSCEF: 04/02/202 03/25/2022 &upreme Court of the tate of fleto Pork $ppellate Bibigion: econb 3fubicial Bepartment D65566 Y/htr AD3d Submitted - November 2020 19, REINALDO E. RIVERA, J.P. COLLEEN D. DUFFY VALERIE BRATHWAITE NELSON LINDA CHRISTOPHER, JJ. 2019-02351 DECISION & ORDER Bank of New York Mellon, etc., plaintiff, v Theresa Brodwith, appellant, et al., defendants. (Index No. 508445/15) Jonathan David Bachrach, New York, NY, for appellant. In an action to foreclose a mortgage, the defendant Theresa Brodwith appeals from an order of the Supreme Court, Kings County (Noach Dear, J.),dated December 6, 2018. The order, insofar as appealed from, denied that branch of that defendant's unopposed motion which was pursuant to CPLR 3101 to direct certain disclosure on the part of the plaintiff. ORDERED that the order is reversed insofar as appealed from, on the law and the facts, without costs or disbursements, and that branch of the motion of the defendant Theresa Brodwith which was pursuant to CPLR 3101 to direct certain disclosure on the part of the plaintiff is granted. In or around 2015, the plaintiff commenced this action against, among others, Theresa Brodwith, individually and in her capacity as Adminstratrix and heir to the Estate of Leroy Brodwith (hereinafter the defendant), to foreclose a mortgage which the plaintiff alleges was given by the decedent Leroy Brodwith (hereinafter the decedent) in 2000 and encumbers certain real property located in Brooklyn. According to an affidavit of indebtedness, sworn to by an employee of the plaintiff's loan servicer, the decedent defaulted in making the mortgage payment due on July 20, 2008, and all payments due thereafter. The defendant interposed an answer, asserting various affirmative defenses and, thereafter, moved, inter alia, pursuant to CPLR 3101 to direct the deposition of the plaintiff regarding the timing of the commencement of the action more than 12 years after decedent's death and the production of the plaintiff's books and records regarding the alleged mortgage at issue. The defendant submitted a copy of the decedent's death certificate, evidencing that the decedent died on November 8, 2003-approximately 5 years before the alleged February 10, 2021 Page 1. BANK OF NEW YORK MELLON v BRODWITH FILED: KINGS COUNTY CLERK 03/25/2022 04:39 PM INDEX NO. 508445/2015 ...-- . ......- ...-.... -....,.. --, ... , , ........., NYSCEF NYSCEF DOC. NO. DOC. NO. 180 135 RECEIVED RECEIVED NYSCEF: NYSCEF: 03/25/2022 04/02/202 default and approximately 12 years before the commencement of the action. The plaintiff did not oppose the motion. In an order dated December 6, 2018, the Supreme Court denied that branch of the unopposed motion (hereinafter the December 2018 order). The defendant appeals. CPLR 3101(a) provides that "[t]here shall be full disclosure of allmatter material and proof." necessary in the prosecution or defense of an action, regardless of the burden of "A party them" is entitled to choose both the discovery devices itwishes to use and the order in which to use (Nimkoff s Central Park Plaza Assoc., LLC, 123 AD3d 679, 680 [internal quotation marks omitted]). Here, the Supreme Court should have granted that branch of the defendant's motion which was pursuant to CPLR 3101 to direct disclosure. Contrary to the court's determination, the defendant did not default in answering the complaint (see generally Jeffers v Stein, 99 AD3d 970, 97.1). Moreover, the plaintiff failed to oppose the motion and never moved to vacate itsdefault; thus, sponte" "the court should not have raised the issue sua (Wells Fargo Bank, N A. v Morales, 178 AD3d 881, 883 ; see Emigrant Mtge. Co., Inc v Fisher, 90 AD3d 823, 824-825). Accordingly, we reverse the December 2018 order insofar as appealed from. RIVERA, J.P., DUFFY, BRATHWAITE NELSON and CHRISTOPHER, JJ.,concur. SUPREME COUn. STATE 0F NEW YORK ENTER: APPELLATE DMSION SECOND DEPT. ha I. APPilANNE AGOSTING, Clerk ofthe Appellate Division of theSupremo urt9ened ludir.:gineontn:ent,dol,meby thatlhavecom certify ared mpy w h the uigiis lilefi in officeon $' Aprilanne Agostino my s e dh a com.;! linnscr mno ol.sr d originial. FEB 1 N Clerk of the Court IN W.iiMS WlGL i I havenereunto set my hand and affixed the seal oftatsGourt on FEB 1 20 p ¾fht.b I t . yILED February 10, 2021 Page 2. BANK OF NEW YORK MELLON v BRODWITH