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 01/10/2023 08:14 PM INDEX NO. 508445/2015
NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 01/10/2023
Supreme Court of the State of New York
Appellate Division: Second Judicial Department
D65566
Y/htr
AD3d Submitted - November 19, 2020
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,
February 10, 2021 Page 1.
BANK OF NEW YORK MELLON v BRODWITH
FILED: KINGS COUNTY CLERK 01/10/2023 08:14 PM INDEX NO. 508445/2015
NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 01/10/2023
evidencing that the decedent died on November 8, 2003—approximately 5 years before the alleged
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 all matter material and
necessary in the prosecution or defense of an action, regardless of the burden of proof.” “A party
is entitled to choose both the discovery devices it wishes to use and the order in which to use them”
(Nimkoff v 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,
971). Moreover, the plaintiff failed to oppose the motion and never moved to vacate its default; thus,
“the court should not have raised the issue sua sponte” (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.
ENTER:
Aprilanne Agostino
Clerk of the Court
February 10, 2021 Page 2.
BANK OF NEW YORK MELLON v BRODWITH
Preview
FILED: KINGS COUNTY CLERK 01/10/2023 08:14 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 01/10/2023 Supreme Court of the State of New York Appellate Division: Second Judicial Department D65566 Y/htr AD3d Submitted - November 19, 2020 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, February 10, 2021 Page 1. BANK OF NEW YORK MELLON v BRODWITH FILED: KINGS COUNTY CLERK 01/10/2023 08:14 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 01/10/2023 evidencing that the decedent died on November 8, 2003—approximately 5 years before the alleged 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 all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” “A party is entitled to choose both the discovery devices it wishes to use and the order in which to use them” (Nimkoff v 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, 971). Moreover, the plaintiff failed to oppose the motion and never moved to vacate its default; thus, “the court should not have raised the issue sua sponte” (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. ENTER: Aprilanne Agostino Clerk of the Court February 10, 2021 Page 2. BANK OF NEW YORK MELLON v BRODWITH