Preview
FILED: KINGS COUNTY CLERK 06/04/2023 10:54 PM INDEX NO. 508445/2015
NYSCEF DOC. NO. 299 RECEIVED NYSCEF: 06/04/2023
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 BEHALF OF THE NOTEHOLDERS AND THE
NOTE INSURER OF ABFS MORTGAGE LOAN
TRUST 2000-4,
Plaintiff,
Index No.
15-508445
Motion Sequence 10
- against - Defendants’ Cross-
Motion
THERESA BRODWITH, INDIVIDUALLY AND AS
ADMINISTRATRIX AND HEIR OF THE ESTATE
OF LEROY BRODWITH, et al.,
Defendants.
---------------------------------------------------------------------------------X
DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF
DEFENDANTS’ OMNIBUS CROSS-MOTION FOR ATTORNEYS’
FEES AND FAIR PLAY IN LITIGATION
Dated: New York, New York
May 30, 2023
Jonathan D. Bachrach, Esq.
Attorney for Theresa Brodwith, Individually and as
Administratrix and Heir of the Estate of Leroy Brodwith
55 Water Street - 32nd Floor
New York, NY 10041
212-977-2400 / jondaba@gmail.com
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TABLE OF CONTENTS
PRELIMINARY STATEMENT ............................................................................... 1
RELEVANT FACTUAL AND PROCEDURAL HISTORY ................................. 4
LEGAL ARGUMENT ............................................................................................... 7
I. DEFENDANTS’ MOTION SHOULD BE GRANTED BECAUSE THE 2ND
DEPARTMENT APPELLATE DIVISION DETERMINED THAT PLAINTIFF
WRONGFULLY PERPETRATED THE “DEFENDANTS DEFAULTED IN
ANSWERING” FRAUD TO CHEAT DEFENDANTS OUT OF THEIR CPLR 31
DISCOVERY RIGHTS...............................................................................................7
II.. THE COURT SHOULD GRANT PLAINTIFF’S CROSS-MOTION FOR
ATTORNEYS’ FEES ................................................................................................ 8
CONCLUSION .......................................................................................................... 9
TABLE OF AUTHORITIES
22 N.Y.C.R.R. § 130.1-1 ...................................................................................... 9, 10
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PRELIMINARY STATEMENT
It is hard to understand the degree to which what seems like a reputable
law firm will utilize materially false allegations to win the case. It would seem
that counsel’s payday means more to counsel than integrity.
Regrettably, although the Bank may pay counsel well for the effort, this
Court should strike that portion of the Bank’s so-called memorandum of law
which is merely an unsworn affidavit of facts as alleged by an attorney,
particularly since the Appellate Division has already rebuked the Bank for lying.
Opposing counsel seems to be a nice person. She has been courteous in
working with Defendants’ counsel and has consented to adjournments.
However, apparently counsel has been told by the Bank that it is perfectly fine
for counsel to create and allege whole cloth fabrications to a judicial tribunal the goal
being to win, not tell the truth.
Indeed, substantially all of counsel’s preliminary statement is a concatenation
of false allegations. A mere few are addressed here, but the Bank’s memo is rife
with such falsities as:
“As to the first reason, Defendant was provided with all documents in
Plaintiff’s possession that are responsive to DEFENDANTS’’S demands.
”Defendant readily admits that she received Plaintiff’s responses and
corresponding document production in response to her written discovery
requests.
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“Therefore, there is no dispute that all discovery has been responded to
and produced in this case.
Moreover, Defendant waived any objection to Plaintiff’s responses and
production as evident by the fact that Defendant did nothing for the past
two (2) years.
The falsity of these statements of counsel is self-evident.
1. Had the Bank actually responded to Defendants’ First Notice for Production
of Documents, there would be no reason for Defendants to ask for the same
response again. Proof of the Pudding: The Bank has hidden its response and
not filed it on NYSCEF to hid itrs none compliance. This Court should order
the Bank to file its response on NYSCEF or be sanctioned pursuant to Section
130-1.1
2. Defendants respectfully suggest that it would anomalous at best for the Court
to sanction Defendants in connection with the Bank’s discovery response -
which the Court has never seen and knows nothing of the contents! One
cannot disparage the color of a pig in a poke.
3. As to counsel’s next sanctionable attempt to falsely mislead the Court:
”Defendant readily admits that she received Plaintiff’s responses and
corresponding document production in response to her written discovery
requests”.
Proof of the Pudding: Had Defendant actually made such an admission, counsel
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would surely have quoted it. Ergo, it is respectfully submitted that unless counsel can
supply this Court with a cite to said “ready admission”, counsel must be sanctioned
pursuant to Section 130-1.1 (c)(3) for asserting material factual statements that are
false.
4. It is certainly bizarre, if not sanctionable for counsel to swear under oath that
“Therefore, there is no dispute that all discovery has been responded to and produced
in this case”. Isn’t discovery at dispute in these papers?
5. Another counsel material representation is similarly sanctionable:
“Moreover, Defendant waived any objection to Plaintiff’s
responses and production as evident by the fact that Defendant did
nothing for the past two (2) years”.
Irrefutable proof of the falsity of counsel’s allegation that “Defendant did nothing for
the part two (2) years is evident from the WebCivil Supreme - efiled documents
detail: Proof of the Pudding: In the past two years, Defendants’ have filed about
half of the one hundred fifty seven (157) documents filed in this case!
So counsel’s false “Defendant did nothing in two (2) years” allegation
requires that
counsel must be sanctioned pursuant to Section 130-1.1 (c)(3) for asserting material
factual statements that are false.
FALSUS IN UNO, FALSUS IN OMNIBUS
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The Bank of New York’s 2022 Revenue was US$16.3 billion.
Nonetheless, the Bank is among the many individuals and entities that will say
absolutely any falsehood for the sake of money. First off, the Bank tried the
“Defendants Defaulted In Answering” Fraud to cheat its way to a $700,000 purse on
a $103,000 loan.
When the Appellate Division ordered that Defendants have discovery, the Bank
lied and cheated with discovery. The reason being to hide the fraud that lies in
discovery which would make out Defendants’ case.
Even in its memorandum of law herein, the Bank has instructed its counsel to
make any allegation necessary, regardless of its veracity, to get that $700,000 from
the Brodwith Family.
We respectfully urge this Court to assure the Brodwith Family of all its rights
under the law and not to let the Bank of New York steal the $700,000 rightfully due
Leroy Brodwith’s Estate.
RELEVANT FACTUAL AND PROCEDURAL HISTORY
On November 9, 2000, Leroy Brodwith executed a note and mortgage in favor
of Plaintiff’s predecessor-in-interest. The Mortgage was recorded in the Office of the
County Clerk, Kings County, on December 12, 2000 in Official Records Reel 5028
at Page 2167.
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Doc. No. 1. On November 8, 2003, Leroy Brodwith passed away, and
Defendant Theresa Brodwith was appointed as Admnistratrix of Mr. Brodwith’s
estate on or about November 5, 2005.
For nearly 10 years thereafter, the Bank of New York rented out the mortgaged
premises while charging an accelerated interest rate.
Without giving the Estate of Brodwith any opportunity to take over the
mortgage or pay the balance or make any other settlement, Plaintiff commenced
foreclosure proceedings on July 8, 2015.
Defendant timely answered
On November 19, 2015, Defendant, through counsel, filed an amended answer,
with defenses and counterclaims (“Amended Answer”).
More than three months later, on March 1, 2016, the Bank answered the
counterclaims (NYSCEF 37)
Thereafter, the Bank and Joseph Etra managed to get Judge Dear to sign an
order finding Defendants in default of answering and therefore, barred from
discovery.
This “Defendants’ Defaulted in Answering Fraud” was denounced and reversed
by the Appellate Division:
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,
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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 hich 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). (NYSCEF
135)
Nonetheless, the Bank and the Court will not comply with the Appellate Division
Order and in each paper submitted and each decision of the Court, make it clear that
the order does not apply.
On March 15, 2021 Defendant served the Brodwith Family’s First Notice for
Production of Documents dated March 20, 1921. (NYSCEF 134 Exhibit 7)
On April 8, 2021, Plaintiff produced a substantial number of pages of
documents. However. The documents were just a pile of undifferentiated documents,
the pages were not responsive to any particular request made by Defendant. Just a
bunch of documents.
Plaintiff also objected to Defendants’ requests for documents and provided no
document at all in response to some of Defendants’ requests.
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Note however, there is no attestation of the Bank as to what the discovery
contained. Only Counsel Valle own unsworn claim as to what was produced. It is
not clear that Counsel Valle was even employed as Bank counsel at the trims of the
alleged production.
Bank counsel says the Bank fully complied. Defendants’ counsel says the Bank
did not comply.
Because the Bank hid its response to the Brodwith Family’s First Notice
for Production of Documents dated March 20, 1921 rather than file it on NYSCEF,
the Court has absolutely no idea whatsoever as to what the Bank turned over.
The Bank clearly wants to hide from the Court whatever it did produce.
It is respectfully submitted that if the Court were to decide the sanctions issue
based on opposing counsels unsworn testimony, the Court should note that the
Appellate Division found that the Bank lied in connection with the “Defendants’
Defaulted in Answering Fraud”.
It is also clear that Bank counsel made several patently false allegations in the
Bank’s Memorandum of Law.
LEGAL ARGUMENT
I. DEFENDANTS’ MOTION SHOULD BE GRANTED BECAUSE THE 2ND
DEPARTMENT APPELLATE DIVISION DETERMINED THAT PLAINTIFF
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WRONGFULLY PERPETRATED THE “DEFENDANTS DEFAULTED IN
ANSWERING” FRAUD TO CHEAT DEFENDANTS OUT OF THEIR CPLR 31
DISCOVERY RIGHTS.
The Bank created and executed the “defendants defaulted in answering” fraud
to cheat defendants out of their CPLR 31 discovery rights. The BANK also engaged
in fraud with respect to discovery by continuing to assure the Court that it had
complied with the Brodwith Family’s First Notice for Production of Documents
dated March 20, 1921.
In reality, however, the Bank has not complied.
II. DEFENDANTS’ MOTION SHOULD BE GRANTED BECAUSE
PLAINTIFF DID NOT SUPPLY ALL DOCUMENTS RESPONSIVE TO
DEFENDANTS’ REQUEST
DEFENDANTS’ instant motion for sanctions must be denied because Plaintiff did
not comply with the Brodwith Family’s First Notice for Production of Documents
dated March 20, 1921.
The fact that Plaintiff continues to refuse to reveal to this Court its actual
response is reason enough to assume that the Bank did not properly respond; certainly
the Bank has given the Court no proof whatsoever as to what it provided to
Defendants; other than an unsworn statement of an attorney who may or may or may
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not have been counsel to the Bank when any production was made.
The Bank was originally represented by Boriskin. The first time Stradley and
Valle appear on WebCivil is over a year after the alleged Bank production.
Anything Lauren Valle know about the Bank’s production, she got from
reading that production and being told what to allege.
The Court should ignore Counsel’s prejudice redaction of the file and demand
to see it before determining whether it was a proper response.
III. THE COURT SHOULD GRANT DEFENDANTS’ CROSS-MOTION FOR
ATTORNEYS’ FEES
Defendants have already incurred significant legal fees and costs defending
the “Defendants’ Defaulted in Answering Fraud” attempting to get fair discovery and
fair play.
Under 22 N.Y.C.R.R. 130-1.1, a court has discretion to impose sanctions
and/or award attorneys’ fees upon a finding of frivolous behavior by a party. Section
130-1.1(b) defines conduct as frivolous if, “(1) it is completely without merit in law
and cannot be supported by an argument for an extension, modification or reversal
of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the
litigation to harass m
oraliciously injure another; or (3) it asserts material factual
statements that are false.” 11 of Inasmuch as Plaintiff has wrongfully run up an
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enormous fee to charge against the
Brodwith Family motion with “Defendants’ Defaulted in Answering Fraud”., forcing
Defendants’ to appeal a fraudulent decision, blocking Defendants’ from having fair
discovery and fair play solely take $700,000 from the Brodwith Estate.
Plaintiff’s instant cross motion for legal fees is yet another reflection of the
vexatious nature in which Plaintiff has litigated this matter.
Defendants’ have already prevailed once in the Appellate Division in this case.
It might be better to consider all the Bank’s on-going motions to thwart Defendants’
search for justice until the outcome of Defendants’ pending appeals.
Therefore, the Court should grant Defendants’ omnibus cross- motion in its
entirety and grant Defendants’ cross-motion for attorneys’ fees and costs incurred in
connection with this motion pursuant to 22 N.Y.C.R.R. § 130.1-1.
CONCLUSION
Defendants respectfully request that the Court grant its motion for sanction
against Plaintiff in its entirety for reasonable attorneys’ fees and costs incurred in
defending the action, along with such other and further relief as the Court may deem
just and proper
Respectfully submitted,
s/ Jonathan D. Bachrach, Esq.
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Preview
FILED: KINGS COUNTY CLERK 06/04/2023 10:54 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 299 RECEIVED NYSCEF: 06/04/2023 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 BEHALF OF THE NOTEHOLDERS AND THE NOTE INSURER OF ABFS MORTGAGE LOAN TRUST 2000-4, Plaintiff, Index No. 15-508445 Motion Sequence 10 - against - Defendants’ Cross- Motion THERESA BRODWITH, INDIVIDUALLY AND AS ADMINISTRATRIX AND HEIR OF THE ESTATE OF LEROY BRODWITH, et al., Defendants. ---------------------------------------------------------------------------------X DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ OMNIBUS CROSS-MOTION FOR ATTORNEYS’ FEES AND FAIR PLAY IN LITIGATION Dated: New York, New York May 30, 2023 Jonathan D. Bachrach, Esq. Attorney for Theresa Brodwith, Individually and as Administratrix and Heir of the Estate of Leroy Brodwith 55 Water Street - 32nd Floor New York, NY 10041 212-977-2400 / jondaba@gmail.com 1 of 12 FILED: KINGS COUNTY CLERK 06/04/2023 10:54 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 299 RECEIVED NYSCEF: 06/04/2023 TABLE OF CONTENTS PRELIMINARY STATEMENT ............................................................................... 1 RELEVANT FACTUAL AND PROCEDURAL HISTORY ................................. 4 LEGAL ARGUMENT ............................................................................................... 7 I. DEFENDANTS’ MOTION SHOULD BE GRANTED BECAUSE THE 2ND DEPARTMENT APPELLATE DIVISION DETERMINED THAT PLAINTIFF WRONGFULLY PERPETRATED THE “DEFENDANTS DEFAULTED IN ANSWERING” FRAUD TO CHEAT DEFENDANTS OUT OF THEIR CPLR 31 DISCOVERY RIGHTS...............................................................................................7 II.. THE COURT SHOULD GRANT PLAINTIFF’S CROSS-MOTION FOR ATTORNEYS’ FEES ................................................................................................ 8 CONCLUSION .......................................................................................................... 9 TABLE OF AUTHORITIES 22 N.Y.C.R.R. § 130.1-1 ...................................................................................... 9, 10 2 of 12 FILED: KINGS COUNTY CLERK 06/04/2023 10:54 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 299 RECEIVED NYSCEF: 06/04/2023 PRELIMINARY STATEMENT It is hard to understand the degree to which what seems like a reputable law firm will utilize materially false allegations to win the case. It would seem that counsel’s payday means more to counsel than integrity. Regrettably, although the Bank may pay counsel well for the effort, this Court should strike that portion of the Bank’s so-called memorandum of law which is merely an unsworn affidavit of facts as alleged by an attorney, particularly since the Appellate Division has already rebuked the Bank for lying. Opposing counsel seems to be a nice person. She has been courteous in working with Defendants’ counsel and has consented to adjournments. However, apparently counsel has been told by the Bank that it is perfectly fine for counsel to create and allege whole cloth fabrications to a judicial tribunal the goal being to win, not tell the truth. Indeed, substantially all of counsel’s preliminary statement is a concatenation of false allegations. A mere few are addressed here, but the Bank’s memo is rife with such falsities as: “As to the first reason, Defendant was provided with all documents in Plaintiff’s possession that are responsive to DEFENDANTS’’S demands. ”Defendant readily admits that she received Plaintiff’s responses and corresponding document production in response to her written discovery requests. -1- 3 of 12 FILED: KINGS COUNTY CLERK 06/04/2023 10:54 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 299 RECEIVED NYSCEF: 06/04/2023 “Therefore, there is no dispute that all discovery has been responded to and produced in this case. Moreover, Defendant waived any objection to Plaintiff’s responses and production as evident by the fact that Defendant did nothing for the past two (2) years. The falsity of these statements of counsel is self-evident. 1. Had the Bank actually responded to Defendants’ First Notice for Production of Documents, there would be no reason for Defendants to ask for the same response again. Proof of the Pudding: The Bank has hidden its response and not filed it on NYSCEF to hid itrs none compliance. This Court should order the Bank to file its response on NYSCEF or be sanctioned pursuant to Section 130-1.1 2. Defendants respectfully suggest that it would anomalous at best for the Court to sanction Defendants in connection with the Bank’s discovery response - which the Court has never seen and knows nothing of the contents! One cannot disparage the color of a pig in a poke. 3. As to counsel’s next sanctionable attempt to falsely mislead the Court: ”Defendant readily admits that she received Plaintiff’s responses and corresponding document production in response to her written discovery requests”. Proof of the Pudding: Had Defendant actually made such an admission, counsel -2- 4 of 12 FILED: KINGS COUNTY CLERK 06/04/2023 10:54 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 299 RECEIVED NYSCEF: 06/04/2023 would surely have quoted it. Ergo, it is respectfully submitted that unless counsel can supply this Court with a cite to said “ready admission”, counsel must be sanctioned pursuant to Section 130-1.1 (c)(3) for asserting material factual statements that are false. 4. It is certainly bizarre, if not sanctionable for counsel to swear under oath that “Therefore, there is no dispute that all discovery has been responded to and produced in this case”. Isn’t discovery at dispute in these papers? 5. Another counsel material representation is similarly sanctionable: “Moreover, Defendant waived any objection to Plaintiff’s responses and production as evident by the fact that Defendant did nothing for the past two (2) years”. Irrefutable proof of the falsity of counsel’s allegation that “Defendant did nothing for the part two (2) years is evident from the WebCivil Supreme - efiled documents detail: Proof of the Pudding: In the past two years, Defendants’ have filed about half of the one hundred fifty seven (157) documents filed in this case! So counsel’s false “Defendant did nothing in two (2) years” allegation requires that counsel must be sanctioned pursuant to Section 130-1.1 (c)(3) for asserting material factual statements that are false. FALSUS IN UNO, FALSUS IN OMNIBUS -3- 5 of 12 FILED: KINGS COUNTY CLERK 06/04/2023 10:54 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 299 RECEIVED NYSCEF: 06/04/2023 The Bank of New York’s 2022 Revenue was US$16.3 billion. Nonetheless, the Bank is among the many individuals and entities that will say absolutely any falsehood for the sake of money. First off, the Bank tried the “Defendants Defaulted In Answering” Fraud to cheat its way to a $700,000 purse on a $103,000 loan. When the Appellate Division ordered that Defendants have discovery, the Bank lied and cheated with discovery. The reason being to hide the fraud that lies in discovery which would make out Defendants’ case. Even in its memorandum of law herein, the Bank has instructed its counsel to make any allegation necessary, regardless of its veracity, to get that $700,000 from the Brodwith Family. We respectfully urge this Court to assure the Brodwith Family of all its rights under the law and not to let the Bank of New York steal the $700,000 rightfully due Leroy Brodwith’s Estate. RELEVANT FACTUAL AND PROCEDURAL HISTORY On November 9, 2000, Leroy Brodwith executed a note and mortgage in favor of Plaintiff’s predecessor-in-interest. The Mortgage was recorded in the Office of the County Clerk, Kings County, on December 12, 2000 in Official Records Reel 5028 at Page 2167. -4- 6 of 12 FILED: KINGS COUNTY CLERK 06/04/2023 10:54 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 299 RECEIVED NYSCEF: 06/04/2023 Doc. No. 1. On November 8, 2003, Leroy Brodwith passed away, and Defendant Theresa Brodwith was appointed as Admnistratrix of Mr. Brodwith’s estate on or about November 5, 2005. For nearly 10 years thereafter, the Bank of New York rented out the mortgaged premises while charging an accelerated interest rate. Without giving the Estate of Brodwith any opportunity to take over the mortgage or pay the balance or make any other settlement, Plaintiff commenced foreclosure proceedings on July 8, 2015. Defendant timely answered On November 19, 2015, Defendant, through counsel, filed an amended answer, with defenses and counterclaims (“Amended Answer”). More than three months later, on March 1, 2016, the Bank answered the counterclaims (NYSCEF 37) Thereafter, the Bank and Joseph Etra managed to get Judge Dear to sign an order finding Defendants in default of answering and therefore, barred from discovery. This “Defendants’ Defaulted in Answering Fraud” was denounced and reversed by the Appellate Division: 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, -5- 7 of 12 FILED: KINGS COUNTY CLERK 06/04/2023 10:54 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 299 RECEIVED NYSCEF: 06/04/2023 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 hich 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). (NYSCEF 135) Nonetheless, the Bank and the Court will not comply with the Appellate Division Order and in each paper submitted and each decision of the Court, make it clear that the order does not apply. On March 15, 2021 Defendant served the Brodwith Family’s First Notice for Production of Documents dated March 20, 1921. (NYSCEF 134 Exhibit 7) On April 8, 2021, Plaintiff produced a substantial number of pages of documents. However. The documents were just a pile of undifferentiated documents, the pages were not responsive to any particular request made by Defendant. Just a bunch of documents. Plaintiff also objected to Defendants’ requests for documents and provided no document at all in response to some of Defendants’ requests. -6- 8 of 12 FILED: KINGS COUNTY CLERK 06/04/2023 10:54 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 299 RECEIVED NYSCEF: 06/04/2023 Note however, there is no attestation of the Bank as to what the discovery contained. Only Counsel Valle own unsworn claim as to what was produced. It is not clear that Counsel Valle was even employed as Bank counsel at the trims of the alleged production. Bank counsel says the Bank fully complied. Defendants’ counsel says the Bank did not comply. Because the Bank hid its response to the Brodwith Family’s First Notice for Production of Documents dated March 20, 1921 rather than file it on NYSCEF, the Court has absolutely no idea whatsoever as to what the Bank turned over. The Bank clearly wants to hide from the Court whatever it did produce. It is respectfully submitted that if the Court were to decide the sanctions issue based on opposing counsels unsworn testimony, the Court should note that the Appellate Division found that the Bank lied in connection with the “Defendants’ Defaulted in Answering Fraud”. It is also clear that Bank counsel made several patently false allegations in the Bank’s Memorandum of Law. LEGAL ARGUMENT I. DEFENDANTS’ MOTION SHOULD BE GRANTED BECAUSE THE 2ND DEPARTMENT APPELLATE DIVISION DETERMINED THAT PLAINTIFF -7- 9 of 12 FILED: KINGS COUNTY CLERK 06/04/2023 10:54 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 299 RECEIVED NYSCEF: 06/04/2023 WRONGFULLY PERPETRATED THE “DEFENDANTS DEFAULTED IN ANSWERING” FRAUD TO CHEAT DEFENDANTS OUT OF THEIR CPLR 31 DISCOVERY RIGHTS. The Bank created and executed the “defendants defaulted in answering” fraud to cheat defendants out of their CPLR 31 discovery rights. The BANK also engaged in fraud with respect to discovery by continuing to assure the Court that it had complied with the Brodwith Family’s First Notice for Production of Documents dated March 20, 1921. In reality, however, the Bank has not complied. II. DEFENDANTS’ MOTION SHOULD BE GRANTED BECAUSE PLAINTIFF DID NOT SUPPLY ALL DOCUMENTS RESPONSIVE TO DEFENDANTS’ REQUEST DEFENDANTS’ instant motion for sanctions must be denied because Plaintiff did not comply with the Brodwith Family’s First Notice for Production of Documents dated March 20, 1921. The fact that Plaintiff continues to refuse to reveal to this Court its actual response is reason enough to assume that the Bank did not properly respond; certainly the Bank has given the Court no proof whatsoever as to what it provided to Defendants; other than an unsworn statement of an attorney who may or may or may -8- 10 of 12 FILED: KINGS COUNTY CLERK 06/04/2023 10:54 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 299 RECEIVED NYSCEF: 06/04/2023 not have been counsel to the Bank when any production was made. The Bank was originally represented by Boriskin. The first time Stradley and Valle appear on WebCivil is over a year after the alleged Bank production. Anything Lauren Valle know about the Bank’s production, she got from reading that production and being told what to allege. The Court should ignore Counsel’s prejudice redaction of the file and demand to see it before determining whether it was a proper response. III. THE COURT SHOULD GRANT DEFENDANTS’ CROSS-MOTION FOR ATTORNEYS’ FEES Defendants have already incurred significant legal fees and costs defending the “Defendants’ Defaulted in Answering Fraud” attempting to get fair discovery and fair play. Under 22 N.Y.C.R.R. 130-1.1, a court has discretion to impose sanctions and/or award attorneys’ fees upon a finding of frivolous behavior by a party. Section 130-1.1(b) defines conduct as frivolous if, “(1) it is completely without merit in law and cannot be supported by an argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation to harass m oraliciously injure another; or (3) it asserts material factual statements that are false.” 11 of Inasmuch as Plaintiff has wrongfully run up an -9- 11 of 12 FILED: KINGS COUNTY CLERK 06/04/2023 10:54 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 299 RECEIVED NYSCEF: 06/04/2023 enormous fee to charge against the Brodwith Family motion with “Defendants’ Defaulted in Answering Fraud”., forcing Defendants’ to appeal a fraudulent decision, blocking Defendants’ from having fair discovery and fair play solely take $700,000 from the Brodwith Estate. Plaintiff’s instant cross motion for legal fees is yet another reflection of the vexatious nature in which Plaintiff has litigated this matter. Defendants’ have already prevailed once in the Appellate Division in this case. It might be better to consider all the Bank’s on-going motions to thwart Defendants’ search for justice until the outcome of Defendants’ pending appeals. Therefore, the Court should grant Defendants’ omnibus cross- motion in its entirety and grant Defendants’ cross-motion for attorneys’ fees and costs incurred in connection with this motion pursuant to 22 N.Y.C.R.R. § 130.1-1. CONCLUSION Defendants respectfully request that the Court grant its motion for sanction against Plaintiff in its entirety for reasonable attorneys’ fees and costs incurred in defending the action, along with such other and further relief as the Court may deem just and proper Respectfully submitted, s/ Jonathan D. Bachrach, Esq. -10- 12 of 12