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FILED: KINGS COUNTY CLERK 02/22/2023 10:14 AM INDEX NO. 508445/2015
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EXHIBIT 3
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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THE BANK OF NEW YORK MELLON F/K/A THE
BANK OF NEW YORK AS INDENTURE TRUSTEE ON Index No. 508445/2015
BEHALF OF THE NOTEHOLDERS AND THE NOTE
INSURER OF ABFS MORTGAGE LOAN TRUST 2000-4,
Motion Sequence:
Plaintiff, 005 and 006
- against - NOTICE OF ENTRY
THERESA BRODWITH, INDIVIDUALLY AND AS
ADMINISTRATRIX AND HEIR OF THE ESTATE OF
LEROY BRODWITH, et al.,
Defendants.
----------------------------------------------------------------------X
PLEASE TAKE NOTICE that annexed hereto is a true and correct copy of the Decision
and Order of Hon. Larry D. Martin, dated January 13, 2023, and entered by the Kings County
Clerk’s Office on February 14, 2023.
Dated: February 16, 2023
New York, New York
STRADLEY RONON STEVENS & YOUNG, LLP
By: /s/ Lauren A. Valle
Lauren A. Valle, Esq.
100 Park Avenue, Suite 2000
New York, NY 10017
Telephone: (212) 404-0641
Facsimile: (646) 682-7180
lvalle@stradley.com
Attorneys for Plaintiff
5993933v.1
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_At an IASTenn,Part FSMP, of the Supreme
Court of the State ofNew York, held in and for
the County of Kings, at the Courthouse,at 360
Adams Street, Brooklyn, New York,oil the 13 th•
day of January 2023.
P RESE NT:
HON. LARRY D MARTIN,
J.S.C.
Index No.: 508445/15
-------------------- X
BNYMELLON,
Plaintiff, DECISION AND ORDER
-against-
l
THERESA BRODWITH et al,
Defendant,
----,------------------ X
, Recitation,as required by CPLR §2219 (a), of the papers considered in the review of this __
Motion:
__>·�
�
Papers N um bered �
I �
Motion (MS 5 ) _1 rr,
c,::,
Opposition _1 __
Motion (MS 6) s.·
_1
Opposition _.1
• ..
{;',
Reply � 1-
,,1
�::!.
,,,
Upon the foregoing cited papers,the Decision/Order on this Motion is as follows:
The instant action was commenced on July 8,2015. Defendant answered through
co�sel2 and then e-filed an amended answer on November 18, 2015. On March.I,2016,
Plaintiffs counsel filed both a rejecti?n of the amended answer due to untimeliness and a reply
to counterclaims3 • A motion for default judgment and an order of reference (MS 1) was filed on
December 29,2017. Therein, Plaintiffs counsel states that Defendant "has appeared and
1
MS 4, an improperly scanned copy of the same motion, was withdrawn by counsel on the return date.
2
The original answer was note-filed and the envelope mailing it to Plaintiffs counsel appears to be post-marked
November 2, 2015.
3 The counterclaims are found only in the amended answer.
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responded to the Complaint, but her Amended Answer was rejected as untimely." Defendant,
•
1
alleging a variety of misconduct by Plaintiff, cross-moved for discovery, tolling, and sanctions
(MS 2)- suggesting that Plaintiff had been "renting ... the premises to tenants" and that Plaintiff
and its affiant committed perjury4 • Plaintiff opposed,arguing that Defendant is in default and
has made no effort,to vacate her default. It additionally posited that the cross-motion "sets forth
self-serving, conclusory statements which are nothing more that a desperate attempt to delay the
foreclosure." Both motions were marked fully·submitted on July 19,2018.
On July 12, 2018 (a week before MS 1&2 were taken on submission), Defendant filed an
order to show cause again seeking to compel discovery and reiterating that Plaintiff "wrongfully,
secretly,and criminally rent[ed] out the real property .. . to third persons" and that its affiant
committed perjury. The OSC also sought referral of the matter to the New York State
Department of Financial Services and the Kings County District of Attorney. The H onorable
Noach Dear declined to sign the OSC. The following month - and after her cross-motion for
discovery was taken on submission-Defendant filed a motion (MS 3) that was substantially the
same as the rejected OSC.
On September 12,2018,Judge Dear granted default judgment and an order of reference
noting that "Defendant makes no effort to vacate her default,focusing solely on allegations that
Plaintiff ll\USt have been renting out the property (based seemingly on an argument that no one
else was paying the mortgage between 2003 and the 2008 default date claimed by Plaintiff) -- a
contention that does not appear supported by any evidence." The Court also denied the cross
motion,finding that a "party in default is not entitled to discovery (see,for example, US Bank
Natl.
I
Assn. v Williams, 153 AD3d 650 [2d Dept 2017])." Defendant filed a notice of appeal from
the September 12,2018 orders but does not appear to have perfected the appeal.
After judgment had already been granted in favor of Plaintiff,Defendant's second motion
for discovery was taken on submission on October 10,2018 without written opposition from
Plaintiff. Seemingly in light of the prior denial of virtually identical relief, Judge Dear denied
this motion as well again stating that a "party in default is not entitled to discovery (see,for
example, US Bank Natl. Assn. v Williams, 153 AD3d 650 [2d Dept 2017])." Defendant again
4
Though Defendant attached copies of both answers to her cross-motion, she did not argue that she was not in
defiJult in this action and/or that Plaintiff moved for the wrong relief.
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1 appealed, this time perfecting. As Plaintiff had not opposed the motion, the Appellate Division
did not allow it to file a brief in opposition, also denying its motion to enlarge the record.
On February 10,2021,the Appellate Division reversed the denial of Defendant's
unopposed motion finding in relevant part that "[c]ontrary 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
de(ault; 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)." 5
Shortly thereafter,Plaintiff filed a request for a preliminary conference and Defendant
served her "First Notice for Production ofDocuments." On April 8,2021, Plaintiff served its
response. A form PC order was issued by the Court without appearance on April 30,2021. The
p�ies entered into a compliance conference order which among other things, set a deadline for
depositions and noted Defendant;s reservation of rights "to file a discovery motion to seek any
additional discovery", on November 12,2021.
On January 5, 2022,Defendant"filed the instant motion (MS-5) seeking'latgely the same
relief as in her prior motions. She again argues - withbut presenting any evidence - that Plaintiff
has admitted that it converted rents and monies due to the borrower's estate and seeks a hearing6
regarding the identities of the individuals involved,the disposition of funds,and other related
issues. Defendant also reiterates her request for a referral of the matter to the New York State
Department of Financial Services and the Kings County District of Attorney. Additionally,
5
While the record on appeal is not before this Court (and is not available on Westlaw), this Court strongly suspects
that the September 12, 2018 order and existence of the dismissed appeal therefrom were ·not before the Appellate
Division. Default judgment had already been granted against Defendant and the requested relief already denied
by the prior order. Were the appellate panel aware of those facts, it would have needed to address them in its
decision - touching on Br:ay v Cox doctrine and, if nonetheless finding that Defendant had not defaulted, vacating
the default judgment and order of reference.
The relevance of Jeffers is also unclear to this Court. Therein, the attorney for the defendants appeared in court on
the day the action was commenced to oppose the plaintiff's order to show cause seeking a preliminary injunction,
thereafter requested an adjournment of the motion, opposed the motion, and appeared for oral argument
thereupon. Consequently, the defendants "made an informal appearance in [the] action, and are therefore not in
default" (Jeffers, 99 AD3d at 971). It is unclear what "informal appearance" was made in the instant action.
Counsel served an answer and amended answer but, in responding to Plaintiff's motion for default judgment,
appears to have accepted that they were rejected. Further, unlike in Jeffers, Defendant did not make a motion
seeking to compel acceptance of a late answer.
6
Previously, she sought depositions regarding the same matters. Now, she requests a hearing.
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Defendant seeks an "[a]ccounting of all amounts collected by Plaintiff relative to subject
mortgage" and to compel Plaintiff to "[c]omply with Defemndan'ts [stet] Discovery Demand
Previously Served on the Bank." Plaintiff opposed, stating that it had already produced its entire
loan servicing file - nearly 1100 pages - and served objections to the requests that were vague
and appeared to request documents that do not exist. Counsel reiterated, as well, that nothing in
her client's records or the record ofthis case supports Defendant's assertion that Plaintiff had
i rented out the property-in-suit- and, thus,that documents relating to the rental could not have
been and still cannot be produced. Additionally, it is undisputed that no objections to Plaintiffs
production were made and no good faith letter was served by Defendant.
Defendant filed another motion (MS 6) on March 20,2022. Per the notice of motion,
"The Bank of New York's conduct herein is sanctionable in that it is racist, dishonest, perjurious,
usurious, and in violation of law and the Bank should be sanction by the Dismissal ofthis action
and an award oflegal fees to To [stet] Movant Theresa Brodwith." More specifically, she asserts
that 'as soon as the borrower died, "the Bank immediately accelerated the interest on loan to a
secret, usurious rate" (Bachrach i[l 6,see also i[l 7F),"wrongfully withheld from Leroy
Brodwith's Estate all notices relative to the status ofthe mortgage (117A-B) and foreclosure
(117E), secretly rented out the real property (117C) and omitted any accounting of the rents
(117D),and delayed filing the instant action (,il 7G). Defendant also asserts that Plaintiffs
cou11sel committed perjury before the Appellate Division7 (,it 7H-N) 8. Finally, she argues that the
deed-in-lieu/cash-for-keys offers made to her were racist and low (1if28-3 l ) 9• Plaintiff opposed,
7
Part of the requested sanctions is costs and attorney fees for the appeal. The Appellate Division's decision was
made "without costs or disbursements" - and without any sanctions. This Court will thus not award any either.
8
Defendant's counsel's theory also includes that Plaintiffs counsel "contacted the judge ex parte and arranged for
him to write a decision denying the motion based on secret allegations" and that the alleged contact led to a
"crooked decision." Such unsubstantiated allegations against a now-deceased member of the judiciary are
inappropriate.
Counsel's assertion that the Appellate Division found Plaintiff's counsel's arguments to be perjurious is
unsupported by the record. While it is true that the panel did not allow Plaintiff to respond to the appeal as it hod
not opposed the underlying motion, were a court to have found an attorney to have knowingly lied to it the
consequences would have been far more severe.
9
More specifically, Defendant asserts that: "It is respectfully submitted that in an action involving a $700,000
property and WHITE people, the Bank would not expect the Defendant to accept $3,000 in full settlement! But the
racist Bank obviously believes that Black folks are dumb enough to take an offer which is a small fraction of the
real value of what they have! The Bank's letter is totally insulting and would not have been written
to the Brodwiths if they were not Black. Vacate the premises? Broom Clean? The Estate never occupied the
premises! Clear title? This action is about the title!" (1129-30).
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noting that it had produced copies of its entire servicing file and that CPLR 3126 is inapposite as
it is in violation of no discovery order and Defendant failed to offer any facts or evidence from
which it could be determined that Plaintiff failed to respond to Defendant' s discovery demands.
Plaintiff further argued that Defendant made accusations that it behaved in a racist manner but
failed to proffer any facts or evidence in support of her allegations. In reply, Defendant
reiterated her arguments that Plaintiff behaved in a racist manner and that its counsel is a
perjurer. She also requested that depositions be scheduled.
I. Discovery
On the return date of Defendant's motions, her counsel was asked what additional
discovery he is seeking. Counsel asserted that he still needed to depose a representative of
Plaintiff as well as the individual who signed the "Affidavit of Indebtedness" submitted with
Plaintiffs motion for default j udgment. He also reiterated his demand for documents perta�ing
to his client;s claim that Plaintiff improperly collected rent from tenants following the
borrower's death.
Plaintiffs counsel accurately noted that Defendant does not appear to have requested
depositions following the Appellate Division's order directing discovery 1 0 and that the deadline
fo� holding them which was set in the compliance conference order has passed. Nonetheless, in
light of the Appellate Divisio�'s order, the Court grants leave to Defendant to - within 30 days
of entry of the instant order- notice the depositions orally requested in Court. If she does so,
Plaintiff is directed to make the necessary witnesses available 1 1 - or move to quash - within 30
days following receipt of the notices.
While Plaintiffs counsel has repeatedly reiterated that Plaintiff did not lease out the
property-in-suit and did not collect rent from tenants - and, thus, that it cannot produce
documents related to such leases and rents - no affirmation from Plaintiff itself has been
10
Notices of deposition had been served in April 2018 during the pendency of the motion for default judgment and
cross-motion for discovery. There does not appear to be any dispute, however, that Defendant has still not made
any attempt to schedule depositions - despite filing his motion to compel two months before the deadline for
depositions passed.
11
It is unclear from the record whether the affiant remains within Plaintiffs control such to produce her. If she is
not, Plaintiff is directed to provide that information· to Defendant's counsel· upon receipt of a notice seeking her
deposition.
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proffered 1 2 • As such,Plaintiff is directed to serve and file an affidavit 1 3 from someone familiar
with its business records and the business practices of whatever entity was servicing the loan
during the relevant time period specifying that there is nothing in its records reflecting that it,its
predecessors, agents, or anyone acting on its behalf leased the property-in-suit to tenants and/or
collected rent from tenants and that doing so would have been contrary to its policies and
pra9tices 1 4 •
II. Sanctions
Sanctions are unwarranted. First and foremost, Defendant has not demonstrated that
Plaintiff failed to comply with its discovery obligations and the previous discovery orders.
Plaintiff responded to the sole set of discovery requests served following the Appellate
Division's order. No objections to the responses were propounded and no good faith letter was
sent. That Defendant is now requesting depositions and disbelieves Plaintiffs claim that it was
not collecting rents is not a basis to sanction Plaintiff.
The rate of interest provided for in the note is 1 1.49% both before and after default.
According to the Affidavit of lndebtedness, it is that rate rather than "a secret, usurious rate" that
has been utilized in calculating the amount due. It is the extremely long period of default - with
interest running and Plaintiff paying the taxes and insurance - that has caused the amount due to
balloon.
No evidence has been proffered that Plaintiff withheld notices relative to the status of the
mortgage and this action from the estate and, even if it had, that would be a potential basis for
affirmative defenses rather than sanctions.
While Defendant c�mtinues to insist that Plaintiff secretly rented out the real property and
failed to account for the rents,no supporting evidence has been produced and the Court will not
sanction a party based upon mere speculation:.
12
In the absence of any evidence that the requested documents exist, the Court would ordinarily not require any
further ·proffer. However, in light of the Appellate Division's decision, the Court does so herein.
13
Or l')'lultiple affidavits, if necessary to address the required issues.
14
If any part of this would be inaccurate, it should obviously be omitted. Additional language further addressing
Defendant's contentions would also be acceptable.
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If Plaintiff's counsel committed perjury before the Appellate Division, that court would
have addressed the issue. It does not appear to have done so. In the absence of any evidence, the
Court. cannot and will not credit allegations of dishonesty by counsel and of a conspiracy with
the .,previous judge assigned to this matter.
While Defendant is of the opinion that the deed-in-lieu/cash-for-keys offers were
woefully low,they are within the range that the Court typically sees. It is not unusual for a
plaintiff to agree to waive deficiency in exchange for title to the premises (deed-in-lieu),
sometimes also paying some amount of money (cash-for-keys). Absent litigation risk, the o:(fer
tends to be modest and is usually intended to assist with moving expenses and related costs. No
evidence has been proffered that the size of the offer was racially motivated and, though
Defendant claims to have been offended by it, sanctions are unwarranted.
f III. Conclusions
Defendant' s motion to compel (MS 5) is granted to the above extent and is, to the extent
not explicitly granted, denied. Defendant's motion for sanctions (MS 6) is denied in its entirety.
This constitutes the decision and order ofthe Court.
ENTER: �
Hon. Larry D Martin JSC
HO N LARRY MARTI N URT
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FILED: KINGS COUNTY CLERK 02/22/2023 10:14 AM INDEX NO. 508445/2015 NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 02/22/2023 EXHIBIT 3 FILED: KINGS FILED: KINGS COUNTY COUNTY CLERK CLERK 02/22/2023 02/16/2023 10:14 03:18 AM PM INDEX NO. INDEX NO. 508445/2015 508445/2015 NYSCEF DOC. NYSCEF DOC. NO. NO. 217 205 RECEIVED NYSCEF: RECEIVED NYSCEF: 02/22/2023 02/16/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ----------------------------------------------------------------------X THE BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK AS INDENTURE TRUSTEE ON Index No. 508445/2015 BEHALF OF THE NOTEHOLDERS AND THE NOTE INSURER OF ABFS MORTGAGE LOAN TRUST 2000-4, Motion Sequence: Plaintiff, 005 and 006 - against - NOTICE OF ENTRY THERESA BRODWITH, INDIVIDUALLY AND AS ADMINISTRATRIX AND HEIR OF THE ESTATE OF LEROY BRODWITH, et al., Defendants. ----------------------------------------------------------------------X PLEASE TAKE NOTICE that annexed hereto is a true and correct copy of the Decision and Order of Hon. Larry D. Martin, dated January 13, 2023, and entered by the Kings County Clerk’s Office on February 14, 2023. Dated: February 16, 2023 New York, New York STRADLEY RONON STEVENS & YOUNG, LLP By: /s/ Lauren A. Valle Lauren A. Valle, Esq. 100 Park Avenue, Suite 2000 New York, NY 10017 Telephone: (212) 404-0641 Facsimile: (646) 682-7180 lvalle@stradley.com Attorneys for Plaintiff 5993933v.1 1 of 8 FILED: KINGS FILED: KINGS COUNTY COUNTY CLERK CLERK 02/22/2023 02/14/2023 10:14 02/16/2023 03:18 AM PM INDEX NO. INDEX NO. 508445/2015 508445/2015 NYSCEF DOC. NYSCEF DOC. NO. NO. 217 204 205 RECEIVED NYSCEF: RECEIVED NYSCEF: 02/22/2023 02/16/2023 _At an IASTenn,Part FSMP, of the Supreme Court of the State ofNew York, held in and for the County of Kings, at the Courthouse,at 360 Adams Street, Brooklyn, New York,oil the 13 th• day of January 2023. P RESE NT: HON. LARRY D MARTIN, J.S.C. Index No.: 508445/15 -------------------- X BNYMELLON, Plaintiff, DECISION AND ORDER -against- l THERESA BRODWITH et al, Defendant, ----,------------------ X , Recitation,as required by CPLR §2219 (a), of the papers considered in the review of this __ Motion: __>·� � Papers N um bered � I � Motion (MS 5 ) _1 rr, c,::, Opposition _1 __ Motion (MS 6) s.· _1 Opposition _.1 • .. {;', Reply � 1- ,,1 �::!. ,,, Upon the foregoing cited papers,the Decision/Order on this Motion is as follows: The instant action was commenced on July 8,2015. Defendant answered through co�sel2 and then e-filed an amended answer on November 18, 2015. On March.I,2016, Plaintiffs counsel filed both a rejecti?n of the amended answer due to untimeliness and a reply to counterclaims3 • A motion for default judgment and an order of reference (MS 1) was filed on December 29,2017. Therein, Plaintiffs counsel states that Defendant "has appeared and 1 MS 4, an improperly scanned copy of the same motion, was withdrawn by counsel on the return date. 2 The original answer was note-filed and the envelope mailing it to Plaintiffs counsel appears to be post-marked November 2, 2015. 3 The counterclaims are found only in the amended answer. 1 of 8 2 7 FILED: KINGS FILED: KINGS COUNTY COUNTY CLERK CLERK 02/22/2023 02/14/2023 10:14 02/16/2023 03:18 AM PM INDEX NO. INDEX NO. 508445/2015 508445/2015 NYSCEF DOC. NYSCEF DOC. NO. NO. 217 204 205 RECEIVED NYSCEF: RECEIVED NYSCEF: 02/22/2023 02/16/2023 responded to the Complaint, but her Amended Answer was rejected as untimely." Defendant, • 1 alleging a variety of misconduct by Plaintiff, cross-moved for discovery, tolling, and sanctions (MS 2)- suggesting that Plaintiff had been "renting ... the premises to tenants" and that Plaintiff and its affiant committed perjury4 • Plaintiff opposed,arguing that Defendant is in default and has made no effort,to vacate her default. It additionally posited that the cross-motion "sets forth self-serving, conclusory statements which are nothing more that a desperate attempt to delay the foreclosure." Both motions were marked fully·submitted on July 19,2018. On July 12, 2018 (a week before MS 1&2 were taken on submission), Defendant filed an order to show cause again seeking to compel discovery and reiterating that Plaintiff "wrongfully, secretly,and criminally rent[ed] out the real property .. . to third persons" and that its affiant committed perjury. The OSC also sought referral of the matter to the New York State Department of Financial Services and the Kings County District of Attorney. The H onorable Noach Dear declined to sign the OSC. The following month - and after her cross-motion for discovery was taken on submission-Defendant filed a motion (MS 3) that was substantially the same as the rejected OSC. On September 12,2018,Judge Dear granted default judgment and an order of reference noting that "Defendant makes no effort to vacate her default,focusing solely on allegations that Plaintiff ll\USt have been renting out the property (based seemingly on an argument that no one else was paying the mortgage between 2003 and the 2008 default date claimed by Plaintiff) -- a contention that does not appear supported by any evidence." The Court also denied the cross motion,finding that a "party in default is not entitled to discovery (see,for example, US Bank Natl. I Assn. v Williams, 153 AD3d 650 [2d Dept 2017])." Defendant filed a notice of appeal from the September 12,2018 orders but does not appear to have perfected the appeal. After judgment had already been granted in favor of Plaintiff,Defendant's second motion for discovery was taken on submission on October 10,2018 without written opposition from Plaintiff. Seemingly in light of the prior denial of virtually identical relief, Judge Dear denied this motion as well again stating that a "party in default is not entitled to discovery (see,for example, US Bank Natl. Assn. v Williams, 153 AD3d 650 [2d Dept 2017])." Defendant again 4 Though Defendant attached copies of both answers to her cross-motion, she did not argue that she was not in defiJult in this action and/or that Plaintiff moved for the wrong relief. 2 of 8 3 7 FILED: KINGS FILED: KINGS COUNTY COUNTY CLERK CLERK 02/22/2023 02/14/2023 10:14 02/16/2023 03:18 AM PM INDEX NO. INDEX NO. 508445/2015 508445/2015 NYSCEF DOC. NYSCEF DOC. NO. NO. 217 204 205 RECEIVED NYSCEF: RECEIVED NYSCEF: 02/22/2023 02/16/2023 1 appealed, this time perfecting. As Plaintiff had not opposed the motion, the Appellate Division did not allow it to file a brief in opposition, also denying its motion to enlarge the record. On February 10,2021,the Appellate Division reversed the denial of Defendant's unopposed motion finding in relevant part that "[c]ontrary 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 de(ault; 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)." 5 Shortly thereafter,Plaintiff filed a request for a preliminary conference and Defendant served her "First Notice for Production ofDocuments." On April 8,2021, Plaintiff served its response. A form PC order was issued by the Court without appearance on April 30,2021. The p�ies entered into a compliance conference order which among other things, set a deadline for depositions and noted Defendant;s reservation of rights "to file a discovery motion to seek any additional discovery", on November 12,2021. On January 5, 2022,Defendant"filed the instant motion (MS-5) seeking'latgely the same relief as in her prior motions. She again argues - withbut presenting any evidence - that Plaintiff has admitted that it converted rents and monies due to the borrower's estate and seeks a hearing6 regarding the identities of the individuals involved,the disposition of funds,and other related issues. Defendant also reiterates her request for a referral of the matter to the New York State Department of Financial Services and the Kings County District of Attorney. Additionally, 5 While the record on appeal is not before this Court (and is not available on Westlaw), this Court strongly suspects that the September 12, 2018 order and existence of the dismissed appeal therefrom were ·not before the Appellate Division. Default judgment had already been granted against Defendant and the requested relief already denied by the prior order. Were the appellate panel aware of those facts, it would have needed to address them in its decision - touching on Br:ay v Cox doctrine and, if nonetheless finding that Defendant had not defaulted, vacating the default judgment and order of reference. The relevance of Jeffers is also unclear to this Court. Therein, the attorney for the defendants appeared in court on the day the action was commenced to oppose the plaintiff's order to show cause seeking a preliminary injunction, thereafter requested an adjournment of the motion, opposed the motion, and appeared for oral argument thereupon. Consequently, the defendants "made an informal appearance in [the] action, and are therefore not in default" (Jeffers, 99 AD3d at 971). It is unclear what "informal appearance" was made in the instant action. Counsel served an answer and amended answer but, in responding to Plaintiff's motion for default judgment, appears to have accepted that they were rejected. Further, unlike in Jeffers, Defendant did not make a motion seeking to compel acceptance of a late answer. 6 Previously, she sought depositions regarding the same matters. Now, she requests a hearing. 3 of 8 4 7 FILED: KINGS FILED: KINGS COUNTY COUNTY CLERK CLERK 02/22/2023 02/14/2023 10:14 02/16/2023 03:18 AM PM INDEX NO. INDEX NO. 508445/2015 508445/2015 NYSCEF DOC. NYSCEF DOC. NO. NO. 217 204 205 RECEIVED NYSCEF: RECEIVED NYSCEF: 02/22/2023 02/16/2023 Defendant seeks an "[a]ccounting of all amounts collected by Plaintiff relative to subject mortgage" and to compel Plaintiff to "[c]omply with Defemndan'ts [stet] Discovery Demand Previously Served on the Bank." Plaintiff opposed, stating that it had already produced its entire loan servicing file - nearly 1100 pages - and served objections to the requests that were vague and appeared to request documents that do not exist. Counsel reiterated, as well, that nothing in her client's records or the record ofthis case supports Defendant's assertion that Plaintiff had i rented out the property-in-suit- and, thus,that documents relating to the rental could not have been and still cannot be produced. Additionally, it is undisputed that no objections to Plaintiffs production were made and no good faith letter was served by Defendant. Defendant filed another motion (MS 6) on March 20,2022. Per the notice of motion, "The Bank of New York's conduct herein is sanctionable in that it is racist, dishonest, perjurious, usurious, and in violation of law and the Bank should be sanction by the Dismissal ofthis action and an award oflegal fees to To [stet] Movant Theresa Brodwith." More specifically, she asserts that 'as soon as the borrower died, "the Bank immediately accelerated the interest on loan to a secret, usurious rate" (Bachrach i[l 6,see also i[l 7F),"wrongfully withheld from Leroy Brodwith's Estate all notices relative to the status ofthe mortgage (117A-B) and foreclosure (117E), secretly rented out the real property (117C) and omitted any accounting of the rents (117D),and delayed filing the instant action (,il 7G). Defendant also asserts that Plaintiffs cou11sel committed perjury before the Appellate Division7 (,it 7H-N) 8. Finally, she argues that the deed-in-lieu/cash-for-keys offers made to her were racist and low (1if28-3 l ) 9• Plaintiff opposed, 7 Part of the requested sanctions is costs and attorney fees for the appeal. The Appellate Division's decision was made "without costs or disbursements" - and without any sanctions. This Court will thus not award any either. 8 Defendant's counsel's theory also includes that Plaintiffs counsel "contacted the judge ex parte and arranged for him to write a decision denying the motion based on secret allegations" and that the alleged contact led to a "crooked decision." Such unsubstantiated allegations against a now-deceased member of the judiciary are inappropriate. Counsel's assertion that the Appellate Division found Plaintiff's counsel's arguments to be perjurious is unsupported by the record. While it is true that the panel did not allow Plaintiff to respond to the appeal as it hod not opposed the underlying motion, were a court to have found an attorney to have knowingly lied to it the consequences would have been far more severe. 9 More specifically, Defendant asserts that: "It is respectfully submitted that in an action involving a $700,000 property and WHITE people, the Bank would not expect the Defendant to accept $3,000 in full settlement! But the racist Bank obviously believes that Black folks are dumb enough to take an offer which is a small fraction of the real value of what they have! The Bank's letter is totally insulting and would not have been written to the Brodwiths if they were not Black. Vacate the premises? Broom Clean? The Estate never occupied the premises! Clear title? This action is about the title!" (1129-30). 4 of 8 5 7 FILED: KINGS FILED: KINGS COUNTY COUNTY CLERK CLERK 02/22/2023 02/14/2023 10:14 02/16/2023 03:18 AM PM INDEX NO. INDEX NO. 508445/2015 508445/2015 NYSCEF DOC. NYSCEF DOC. NO. NO. 217 204 205 RECEIVED NYSCEF: RECEIVED NYSCEF: 02/22/2023 02/16/2023 noting that it had produced copies of its entire servicing file and that CPLR 3126 is inapposite as it is in violation of no discovery order and Defendant failed to offer any facts or evidence from which it could be determined that Plaintiff failed to respond to Defendant' s discovery demands. Plaintiff further argued that Defendant made accusations that it behaved in a racist manner but failed to proffer any facts or evidence in support of her allegations. In reply, Defendant reiterated her arguments that Plaintiff behaved in a racist manner and that its counsel is a perjurer. She also requested that depositions be scheduled. I. Discovery On the return date of Defendant's motions, her counsel was asked what additional discovery he is seeking. Counsel asserted that he still needed to depose a representative of Plaintiff as well as the individual who signed the "Affidavit of Indebtedness" submitted with Plaintiffs motion for default j udgment. He also reiterated his demand for documents perta�ing to his client;s claim that Plaintiff improperly collected rent from tenants following the borrower's death. Plaintiffs counsel accurately noted that Defendant does not appear to have requested depositions following the Appellate Division's order directing discovery 1 0 and that the deadline fo� holding them which was set in the compliance conference order has passed. Nonetheless, in light of the Appellate Divisio�'s order, the Court grants leave to Defendant to - within 30 days of entry of the instant order- notice the depositions orally requested in Court. If she does so, Plaintiff is directed to make the necessary witnesses available 1 1 - or move to quash - within 30 days following receipt of the notices. While Plaintiffs counsel has repeatedly reiterated that Plaintiff did not lease out the property-in-suit and did not collect rent from tenants - and, thus, that it cannot produce documents related to such leases and rents - no affirmation from Plaintiff itself has been 10 Notices of deposition had been served in April 2018 during the pendency of the motion for default judgment and cross-motion for discovery. There does not appear to be any dispute, however, that Defendant has still not made any attempt to schedule depositions - despite filing his motion to compel two months before the deadline for depositions passed. 11 It is unclear from the record whether the affiant remains within Plaintiffs control such to produce her. If she is not, Plaintiff is directed to provide that information· to Defendant's counsel· upon receipt of a notice seeking her deposition. 5 of 8 6 7 L FILED: KINGS FILED: KINGS COUNTY COUNTY CLERK CLERK 02/22/2023 02/14/2023 10:14 02/16/2023 03:18 AM PM INDEX NO. INDEX NO. 508445/2015 508445/2015 NYSCEF DOC. NYSCEF DOC. NO. NO. 217 204 205 RECEIVED NYSCEF: RECEIVED NYSCEF: 02/22/2023 02/16/2023 proffered 1 2 • As such,Plaintiff is directed to serve and file an affidavit 1 3 from someone familiar with its business records and the business practices of whatever entity was servicing the loan during the relevant time period specifying that there is nothing in its records reflecting that it,its predecessors, agents, or anyone acting on its behalf leased the property-in-suit to tenants and/or collected rent from tenants and that doing so would have been contrary to its policies and pra9tices 1 4 • II. Sanctions Sanctions are unwarranted. First and foremost, Defendant has not demonstrated that Plaintiff failed to comply with its discovery obligations and the previous discovery orders. Plaintiff responded to the sole set of discovery requests served following the Appellate Division's order. No objections to the responses were propounded and no good faith letter was sent. That Defendant is now requesting depositions and disbelieves Plaintiffs claim that it was not collecting rents is not a basis to sanction Plaintiff. The rate of interest provided for in the note is 1 1.49% both before and after default. According to the Affidavit of lndebtedness, it is that rate rather than "a secret, usurious rate" that has been utilized in calculating the amount due. It is the extremely long period of default - with interest running and Plaintiff paying the taxes and insurance - that has caused the amount due to balloon. No evidence has been proffered that Plaintiff withheld notices relative to the status of the mortgage and this action from the estate and, even if it had, that would be a potential basis for affirmative defenses rather than sanctions. While Defendant c�mtinues to insist that Plaintiff secretly rented out the real property and failed to account for the rents,no supporting evidence has been produced and the Court will not sanction a party based upon mere speculation:. 12 In the absence of any evidence that the requested documents exist, the Court would ordinarily not require any further ·proffer. However, in light of the Appellate Division's decision, the Court does so herein. 13 Or l')'lultiple affidavits, if necessary to address the required issues. 14 If any part of this would be inaccurate, it should obviously be omitted. Additional language further addressing Defendant's contentions would also be acceptable. 6 of 8 7 7 FILED: KINGS FILED: KINGS COUNTY COUNTY CLERK CLERK 02/22/2023 02/14/2023 10:14 02/16/2023 03:18 AM PM INDEX NO. INDEX NO. 508445/2015 508445/2015 . . NYSCEF DOC. NYSCEF DOC. NO. ;; NO. 217 204 205 RECEIVED NYSCEF: RECEIVED NYSCEF: 02/22/2023 02/16/2023 If Plaintiff's counsel committed perjury before the Appellate Division, that court would have addressed the issue. It does not appear to have done so. In the absence of any evidence, the Court. cannot and will not credit allegations of dishonesty by counsel and of a conspiracy with the .,previous judge assigned to this matter. While Defendant is of the opinion that the deed-in-lieu/cash-for-keys offers were woefully low,they are within the range that the Court typically sees. It is not unusual for a plaintiff to agree to waive deficiency in exchange for title to the premises (deed-in-lieu), sometimes also paying some amount of money (cash-for-keys). Absent litigation risk, the o:(fer tends to be modest and is usually intended to assist with moving expenses and related costs. No evidence has been proffered that the size of the offer was racially motivated and, though Defendant claims to have been offended by it, sanctions are unwarranted. f III. Conclusions Defendant' s motion to compel (MS 5) is granted to the above extent and is, to the extent not explicitly granted, denied. Defendant's motion for sanctions (MS 6) is denied in its entirety. This constitutes the decision and order ofthe Court. ENTER: � Hon. Larry D Martin JSC HO N LARRY MARTI N URT E CO JU STiCE OF TH E SU PREM _-q S-� (/) ....... ....r- r-- C: ;.,, •z I -i 0 -< 7 of 8 8 7