Preview
FILED: KINGS COUNTY CLERK 06/05/2023 09:36 PM INDEX NO. 508445/2015
NYSCEF DOC. NO. 309 RECEIVED NYSCEF: 06/05/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
-------------------------------------------------------------X In dex No. 508445/2015
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, AFFIRMATION
In Opposition to
Plaintiff’s Cross-Motion
-against - For Sanctions
THERESA BRODWITH, INDIVIDUALLY AND AS
ADMINISTRATRIX AND HEIR OF THE ESTATE
OF LEROY BRODWITH, et al.,
Defendant.
----------------------------------------------------------------X
JONATHAN DAVID BACHRACH, an attorney duly admitted to practice
in the State of New York, affirms as true under penalty of perjury:
1. I am JONATHAN DAVID BACHRACH, ESQ., attorney for Theresa
Brodwith and the Estate of Leroy Brodwith in the above-captioned action, and I am
fully familiar with all the facts and circumstances hereinbefore had.
INTRODUCTION
2. In this foreclosure action, the Bank is hoping to obtain some $700,000
on a $103,000 loan made to Black Man Leroy Brodwith who died in 2003.
3. The Kings Supreme Foreclosure Department is enabling the Bank to get
that $700,000.
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4. For example, out of the blue, the Foreclosure Dept bizarrely and
fraudulently ruled that Defendant Brodwith Family had defaulted in answering!
5. Therefore, said the Court, the Brodwith Family can’t have
discovery of the Bank!
6. It is respectfully submitted that if the Court felt the need to take this
step to shield the Bank from discovery, there must be plenty of adverse material to
be is covered!
FIRST THINGS FIRST
7. Plaintiff’s cross-motion is defective as it seeks sanctions against
“Defendant”
There are eighteen (18) defendant in this action:.
THERESA BRODWITH, INDIVIDUALLY AND AS
ADMINISTRATRIX AND HEIR OF THE ESTATE OF LEROY
BRODWITH; BENIAH ANOKAM; NEW YORK STATE
DEPARTMENT OF TAXATION AND FINANCE; NEW YORK CITY
ENVIRONMENT AL CONTROL BOARD; UNITED STATES OF
AMERICA, "JOHN DOE #1" through "JOHN DOE #12," the last
twelve 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 premises,
described in the complaint.
This Court is not at liberty to select a defendant to grant sanctions against when the
Bank has failed to do so.
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8. Inasmuch as Plaintiff’s motion fails to specify the party against whom
it seeks sanctions, Plaintiff’s cross-motion must be denied.
FIRST THINGS FIRST AGAIN
9. But again, first things first: “The Defendants’ Defaulted in Answering”
Fraud. It is inexpiable that the Court ignores the scandalous Bank/Etra Defendants’
Defaulted in Answering”
10. Let’s hear this Court say “Yeah, the App Div was right - Defendants
actually did not default in answering”.
11. Before worrying about legal fees for the Bank (2022 Revenue $16
Billion) for falsely alleged repetitive motions during the pandemic, let’s think about
the Black Family Brodwith being ripped off by the Bank’s scandalous “The
Defendants’ Defaulted in Answering” Fraud.
12. The Bank swindled the Brodwith Family at real financial costs to them!
1. The need to appeal a fraudulent ruling.
2. The cost of legal fees to appeal.
3. The legal cost of answering the Bank’s opposition to the appeal -
The Bank failed to appear for the motion yielding the
appealed decision - so it had no right to submit papers.
Typically, the Bank submitted totally perjured
papers, which Defendants had to oppose.
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4. $3,600+ in appellate printing fees.(See Exhibit 10)
Can we talk about expenses that Bank fraudulently cost the Brodwith Family?
The Appellate Division rebuked this Court for the Bank/Etra fraud:
“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.(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.
Decision of the 2nd Dept. Appellate Division (NYSCEF 135)
NO SWEEPING THE DECISION UNDER THE RUG
13. It is respectfully submitted that despite the Bank’s entreaty, this Court
should not sweep the Appellate Division’s rebuke under the rug.
14. Let’s hear this Court talk about how much the Bank’s “The Defendants’
Defaulted in Answering” Fraud cost the Brodwiths in dollars and cents.
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“Contrary to the court’s determination, the defendant did not
default in answering the complaint.”
So why did the Coujrt rule it did?
15. According to the App Div, the Bank acted fraudulently in getting this
Court to rule that the defendant did default in answering the complaint. Instead
of rationalizations like Etra’s “This is a weird decision, I am not sure I will comply
with it”.
16. But now, let’s hear this Court say:
We judges of Kings Supreme do not condone fraud and whosoever
commits fraud, even a $16 Billion annual revenue bank, will be made to
pay the fees and expenses of the party that was defrauded.
We will hold a fair and honest inquest to determine the amount that
Bank’s Defendants’ Defaulted in Answering” fraud cost the Brodwith
Family and we will order the Bank to pay it.
It is respectfully submitted that Rule 130 was enacted to prevent just the corrupt type
of conduct in litigation that the Bank perpetrated with its “ Defendants’ Defaulted
in Answering Fraud” rip-off of Defendants.
“THERE SHALL BE FULL DISCLOSURE”
17. The Appellate Division determined:
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 default and
approximately 12 years before the commencement of the action.
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That’s the law of the case: The Bank delayed 12 years to bring this action.
18. It is laughable that the Bank now says Defendants should be barred from
discovery since “it took too long”. The Bank just filed a motion to extend the note of
issue for several months. There no deadline by which to complete discovery, except
for Defendants. The provision of the CPLR cited to cut off Defendants’ discovery:
“If discovery was important, it should have been pursued a long time ago”
This ruling is little more than an extension of the Bank/Etra fraud that Defendants
defaulted in answering and so therefore can’t have discovery of the Bank.
“[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.”
That’s what the Appellate Division said.
19. Why don’t we hear this Court say:
“Yeah, the App Div was right, Defendants are entitled to discovery”.
Not withstanding the Appellate Division, it appears that the Court simply does not
want Defendants to have discovery, no law or case is necessary.
A PIG IN A POKE
20. According to Merriam-Webster the expression “A pig in a poke” is an
idiom first used in 1555. It is said to mean something that you buy or accept without
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first seeing it or finding out if it is good.
21. I recall that the phrase arises out of the old markets where people
would buy an animal kept in a bag (a poke), without first seeing the actual animal.
What would happen is that a merchant would sell a customer a bag with some
moving animal in it, saying “There is a nice, juicy pig in this poke” .
22. But when the customer got home and opened the bag, he or she would
find a cat or a rabbit, or something having little value.
23. The Bank is asking this Court to buy a pig in a poke. “Judge, trust us,
we really did comply” .
24. Let’s be honest for a minute: This Honorable Court hasn’t the foggiest
notion as to whether or not the Bank’s response to Defendants’ First Notice for
Production of Documents dated 03/16/2021 complied with the Notice . NYSCEF 134
25. Accordingly, any decision made by this Court will not be based on
actual knowledge but simply a matter of whom the Court wants to favor - the Bank
or Defendants.
26. Attorneys for both sides have expressed the view that favors its own
side.
27. Let’s hear this Court say: How can we rule that Plaintiff duly responded
to Defendants’ First Notice for Production of Documents. dated March 16, 2021
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- when we haven’t even seen Plaintiff’s response?
WHY IS THE IT A PIG IN A POKE?
28. In reality, the Bank’s response to Defendants’ First Notice for Production
of Documents. dated March 16, 2021 was materially deficient.
29. In fact, until this day, Plaintiff has refused to file is alleged complete
responses . On March 16, 2021 Defendant served the Brodwith Family’s First
Notice for Production of Documents dated March 20, 1921. (NYSCEF 134 Ex. 7)
30. 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.
31. Plaintiff also inappropriately objected to Defendants’ requests for
documents and provided no document at all in response to some of Defendants’
requests.
32. Note however, there is no attestation of the Bank itself 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.
33. Because the Bank hid its response to the Brodwith Family’s First
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Notice for Production of Documents dated March 16, 2021 rather than file it on
NYSCEF, the Court has absolutely no idea whatsoever as to what the Bank
turned over. The Bank’s response is a pig in a poke. The Bank clearly wants to hide
from the Court whatever it did produce.
34. However, by hiding its actual response to Defendants’ First Notice for
Production of Documents. dated March 16, 2021, the Bank has deprived this Court
from honestly determining whether Plaintiff’s response - a pig in a poke - complied
with the Brodwith Family’s First Notice for Production of Documents dated March
16, 2021.
35. Lets hear this Court say:
Plaintiff asks this Court to award Rule 130 sanctions against
Defendants alleging that Plaintiff fully complied with Defendants’ First
Notice for Production of Documents. dated March 16, 2021 and that
Defendants’ repeated motions for discovery are duplicative and
sanctionable.
However, inasmuch as this Court has no knowledge whatsoever
as to Plaintiff’s alleged response to Defendants’ Notice, it cannot make
any ruling based on Plaintiff’s response or non-response.
Accordingly, the Court cannot grant sanctions based on the
Bank’s allegation that it has fully complied with Defendants’ Notice
and cannot rule that Defendants’ motions for discovery are sanctionably
duplicative.
If Plaintiff wishes to pursue such claim, then within 30 days of
this order being served with notice of entry, Plaintiff can file on
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NYSSEC its Response to Defendants; March 16, 2021 Notice and
renew its application for sanctions. Whereupon the Court can view
Plaintiff’s response and make determinations based on actual knowledge
of Plaintiff’s response.
Seems fair. Otherwise, any ruling relative to Plaintiff’s alleged response will be
based on preference rather that facts or the law.
SANCTIONS? THE BANK IS CRIMINALLY RACIST
36. The Bank seeking sanctions against Defendants is comparable to the
Germans seeking reparations after WWII.
37. And see how huffy the Bank is in the extreme about all the wrongs
done to it by the mean old Brodwith Family.
38. The Court is invited to examine Exhibit 11 attached - a printout of an
website that evaluates property in New York. It says that the mortgaged property has
a current estimated market value of some $723,500. Defendants do not claim this
printout is an exact appraisal, but it does give the Court some idea of the value of the
mortgaged property - well over $700,000.
39. Now, the Court is invited to examine Exhibit 12 attached - a letter from
the Bank offering to pay the Brodwith Family to give up all its claims to the property
on the following terms:
1. Payment of $3,000 to Borrower.
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2. Borrower must vacate the premises by 5/1/2021.
3. Deed-in-Lieu Conditions Only:
A. Broom Swept Clean
B. Clear Title
Sick. Very sick. How sick? Let me count the ways:
40. $3,000 for a $700,000 plus property - its sick and frivolous;
41. And who is the Borrower? Certainly not the Brodwiths;
42. Vacate the Premises - Isn’t this frivolous when the Defendants have
never been in the premises?;
43. Broom Swept Clean? Clear Title? Cant get more frivolous that this!
It is respectfully submitted that the Bank of New York Mellon would never treat any
white person in this manner! $3,000 for a $700,000 plus property! And the swindling
racist Bank is huffy about some discovery motions!
DISCOVERY AS PER APPELLATE DIVISION
44. Against, we urge this Court to accept the ruling of the Appellate
Division and order the Bank to fully comply with the Brodwith Family’s First Notice
for Production of Documents dated March 20, 2021; if the Bank claims it has
responded, then requiring the Bank to file with NYSCEF any claimed prior discovery
responses;
WHEREFORE, for all the foregoing reasons, it is respectfully submitted that
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this Court should make and enter an order denying in its entirety the racist Bank’s
cross-motion for sanctions and legal fees and whatever, and order the Bank to fully
comply with the Brodwith Family’s First Notice for Production of Documents dated
March 20, 2021; if the Bank claims it has responded, then requiring the Bank to file
with NYSCEF any claimed prior discovery responses, and and grant Theresa
Brodwith, Individually and as Administratrix and Heir of the Estate of Leroy
Brodwith, such other, other further and different relief as to this Honorable
Court may seem just and proper.
Dated: New York, New York
May 30, 2023
Respectfully submitted,
/s/ Jonathan D. Bachrach
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
CERTIFICATION OF WORD COUNT
Pursuant to Rule 33.1(h) of the Rules of this Court, the undersigned does hereby
certify that the accompanying Affirmation in Support of Motion contains 2,477
words, excluding the parts of the document that are exempted by Rule 33.1(d).
Dated: New York, NY
May 30, 2023
Respectfully Submitted,
/s/ JD Bachrach
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Preview
FILED: KINGS COUNTY CLERK 06/05/2023 09:36 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 309 RECEIVED NYSCEF: 06/05/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -------------------------------------------------------------X In dex No. 508445/2015 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, AFFIRMATION In Opposition to Plaintiff’s Cross-Motion -against - For Sanctions THERESA BRODWITH, INDIVIDUALLY AND AS ADMINISTRATRIX AND HEIR OF THE ESTATE OF LEROY BRODWITH, et al., Defendant. ----------------------------------------------------------------X JONATHAN DAVID BACHRACH, an attorney duly admitted to practice in the State of New York, affirms as true under penalty of perjury: 1. I am JONATHAN DAVID BACHRACH, ESQ., attorney for Theresa Brodwith and the Estate of Leroy Brodwith in the above-captioned action, and I am fully familiar with all the facts and circumstances hereinbefore had. INTRODUCTION 2. In this foreclosure action, the Bank is hoping to obtain some $700,000 on a $103,000 loan made to Black Man Leroy Brodwith who died in 2003. 3. The Kings Supreme Foreclosure Department is enabling the Bank to get that $700,000. 1 of 12 FILED: KINGS COUNTY CLERK 06/05/2023 09:36 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 309 RECEIVED NYSCEF: 06/05/2023 4. For example, out of the blue, the Foreclosure Dept bizarrely and fraudulently ruled that Defendant Brodwith Family had defaulted in answering! 5. Therefore, said the Court, the Brodwith Family can’t have discovery of the Bank! 6. It is respectfully submitted that if the Court felt the need to take this step to shield the Bank from discovery, there must be plenty of adverse material to be is covered! FIRST THINGS FIRST 7. Plaintiff’s cross-motion is defective as it seeks sanctions against “Defendant” There are eighteen (18) defendant in this action:. THERESA BRODWITH, INDIVIDUALLY AND AS ADMINISTRATRIX AND HEIR OF THE ESTATE OF LEROY BRODWITH; BENIAH ANOKAM; NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE; NEW YORK CITY ENVIRONMENT AL CONTROL BOARD; UNITED STATES OF AMERICA, "JOHN DOE #1" through "JOHN DOE #12," the last twelve 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 premises, described in the complaint. This Court is not at liberty to select a defendant to grant sanctions against when the Bank has failed to do so. -2- 2 of 12 FILED: KINGS COUNTY CLERK 06/05/2023 09:36 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 309 RECEIVED NYSCEF: 06/05/2023 8. Inasmuch as Plaintiff’s motion fails to specify the party against whom it seeks sanctions, Plaintiff’s cross-motion must be denied. FIRST THINGS FIRST AGAIN 9. But again, first things first: “The Defendants’ Defaulted in Answering” Fraud. It is inexpiable that the Court ignores the scandalous Bank/Etra Defendants’ Defaulted in Answering” 10. Let’s hear this Court say “Yeah, the App Div was right - Defendants actually did not default in answering”. 11. Before worrying about legal fees for the Bank (2022 Revenue $16 Billion) for falsely alleged repetitive motions during the pandemic, let’s think about the Black Family Brodwith being ripped off by the Bank’s scandalous “The Defendants’ Defaulted in Answering” Fraud. 12. The Bank swindled the Brodwith Family at real financial costs to them! 1. The need to appeal a fraudulent ruling. 2. The cost of legal fees to appeal. 3. The legal cost of answering the Bank’s opposition to the appeal - The Bank failed to appear for the motion yielding the appealed decision - so it had no right to submit papers. Typically, the Bank submitted totally perjured papers, which Defendants had to oppose. -3- 3 of 12 FILED: KINGS COUNTY CLERK 06/05/2023 09:36 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 309 RECEIVED NYSCEF: 06/05/2023 4. $3,600+ in appellate printing fees.(See Exhibit 10) Can we talk about expenses that Bank fraudulently cost the Brodwith Family? The Appellate Division rebuked this Court for the Bank/Etra fraud: “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.(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. Decision of the 2nd Dept. Appellate Division (NYSCEF 135) NO SWEEPING THE DECISION UNDER THE RUG 13. It is respectfully submitted that despite the Bank’s entreaty, this Court should not sweep the Appellate Division’s rebuke under the rug. 14. Let’s hear this Court talk about how much the Bank’s “The Defendants’ Defaulted in Answering” Fraud cost the Brodwiths in dollars and cents. -4- 4 of 12 FILED: KINGS COUNTY CLERK 06/05/2023 09:36 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 309 RECEIVED NYSCEF: 06/05/2023 “Contrary to the court’s determination, the defendant did not default in answering the complaint.” So why did the Coujrt rule it did? 15. According to the App Div, the Bank acted fraudulently in getting this Court to rule that the defendant did default in answering the complaint. Instead of rationalizations like Etra’s “This is a weird decision, I am not sure I will comply with it”. 16. But now, let’s hear this Court say: We judges of Kings Supreme do not condone fraud and whosoever commits fraud, even a $16 Billion annual revenue bank, will be made to pay the fees and expenses of the party that was defrauded. We will hold a fair and honest inquest to determine the amount that Bank’s Defendants’ Defaulted in Answering” fraud cost the Brodwith Family and we will order the Bank to pay it. It is respectfully submitted that Rule 130 was enacted to prevent just the corrupt type of conduct in litigation that the Bank perpetrated with its “ Defendants’ Defaulted in Answering Fraud” rip-off of Defendants. “THERE SHALL BE FULL DISCLOSURE” 17. The Appellate Division determined: 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 default and approximately 12 years before the commencement of the action. -5- 5 of 12 FILED: KINGS COUNTY CLERK 06/05/2023 09:36 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 309 RECEIVED NYSCEF: 06/05/2023 That’s the law of the case: The Bank delayed 12 years to bring this action. 18. It is laughable that the Bank now says Defendants should be barred from discovery since “it took too long”. The Bank just filed a motion to extend the note of issue for several months. There no deadline by which to complete discovery, except for Defendants. The provision of the CPLR cited to cut off Defendants’ discovery: “If discovery was important, it should have been pursued a long time ago” This ruling is little more than an extension of the Bank/Etra fraud that Defendants defaulted in answering and so therefore can’t have discovery of the Bank. “[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.” That’s what the Appellate Division said. 19. Why don’t we hear this Court say: “Yeah, the App Div was right, Defendants are entitled to discovery”. Not withstanding the Appellate Division, it appears that the Court simply does not want Defendants to have discovery, no law or case is necessary. A PIG IN A POKE 20. According to Merriam-Webster the expression “A pig in a poke” is an idiom first used in 1555. It is said to mean something that you buy or accept without -6- 6 of 12 FILED: KINGS COUNTY CLERK 06/05/2023 09:36 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 309 RECEIVED NYSCEF: 06/05/2023 first seeing it or finding out if it is good. 21. I recall that the phrase arises out of the old markets where people would buy an animal kept in a bag (a poke), without first seeing the actual animal. What would happen is that a merchant would sell a customer a bag with some moving animal in it, saying “There is a nice, juicy pig in this poke” . 22. But when the customer got home and opened the bag, he or she would find a cat or a rabbit, or something having little value. 23. The Bank is asking this Court to buy a pig in a poke. “Judge, trust us, we really did comply” . 24. Let’s be honest for a minute: This Honorable Court hasn’t the foggiest notion as to whether or not the Bank’s response to Defendants’ First Notice for Production of Documents dated 03/16/2021 complied with the Notice . NYSCEF 134 25. Accordingly, any decision made by this Court will not be based on actual knowledge but simply a matter of whom the Court wants to favor - the Bank or Defendants. 26. Attorneys for both sides have expressed the view that favors its own side. 27. Let’s hear this Court say: How can we rule that Plaintiff duly responded to Defendants’ First Notice for Production of Documents. dated March 16, 2021 -7- 7 of 12 FILED: KINGS COUNTY CLERK 06/05/2023 09:36 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 309 RECEIVED NYSCEF: 06/05/2023 - when we haven’t even seen Plaintiff’s response? WHY IS THE IT A PIG IN A POKE? 28. In reality, the Bank’s response to Defendants’ First Notice for Production of Documents. dated March 16, 2021 was materially deficient. 29. In fact, until this day, Plaintiff has refused to file is alleged complete responses . On March 16, 2021 Defendant served the Brodwith Family’s First Notice for Production of Documents dated March 20, 1921. (NYSCEF 134 Ex. 7) 30. 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. 31. Plaintiff also inappropriately objected to Defendants’ requests for documents and provided no document at all in response to some of Defendants’ requests. 32. Note however, there is no attestation of the Bank itself 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. 33. Because the Bank hid its response to the Brodwith Family’s First -8- 8 of 12 FILED: KINGS COUNTY CLERK 06/05/2023 09:36 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 309 RECEIVED NYSCEF: 06/05/2023 Notice for Production of Documents dated March 16, 2021 rather than file it on NYSCEF, the Court has absolutely no idea whatsoever as to what the Bank turned over. The Bank’s response is a pig in a poke. The Bank clearly wants to hide from the Court whatever it did produce. 34. However, by hiding its actual response to Defendants’ First Notice for Production of Documents. dated March 16, 2021, the Bank has deprived this Court from honestly determining whether Plaintiff’s response - a pig in a poke - complied with the Brodwith Family’s First Notice for Production of Documents dated March 16, 2021. 35. Lets hear this Court say: Plaintiff asks this Court to award Rule 130 sanctions against Defendants alleging that Plaintiff fully complied with Defendants’ First Notice for Production of Documents. dated March 16, 2021 and that Defendants’ repeated motions for discovery are duplicative and sanctionable. However, inasmuch as this Court has no knowledge whatsoever as to Plaintiff’s alleged response to Defendants’ Notice, it cannot make any ruling based on Plaintiff’s response or non-response. Accordingly, the Court cannot grant sanctions based on the Bank’s allegation that it has fully complied with Defendants’ Notice and cannot rule that Defendants’ motions for discovery are sanctionably duplicative. If Plaintiff wishes to pursue such claim, then within 30 days of this order being served with notice of entry, Plaintiff can file on -9- 9 of 12 FILED: KINGS COUNTY CLERK 06/05/2023 09:36 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 309 RECEIVED NYSCEF: 06/05/2023 NYSSEC its Response to Defendants; March 16, 2021 Notice and renew its application for sanctions. Whereupon the Court can view Plaintiff’s response and make determinations based on actual knowledge of Plaintiff’s response. Seems fair. Otherwise, any ruling relative to Plaintiff’s alleged response will be based on preference rather that facts or the law. SANCTIONS? THE BANK IS CRIMINALLY RACIST 36. The Bank seeking sanctions against Defendants is comparable to the Germans seeking reparations after WWII. 37. And see how huffy the Bank is in the extreme about all the wrongs done to it by the mean old Brodwith Family. 38. The Court is invited to examine Exhibit 11 attached - a printout of an website that evaluates property in New York. It says that the mortgaged property has a current estimated market value of some $723,500. Defendants do not claim this printout is an exact appraisal, but it does give the Court some idea of the value of the mortgaged property - well over $700,000. 39. Now, the Court is invited to examine Exhibit 12 attached - a letter from the Bank offering to pay the Brodwith Family to give up all its claims to the property on the following terms: 1. Payment of $3,000 to Borrower. -10- 10 of 12 FILED: KINGS COUNTY CLERK 06/05/2023 09:36 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 309 RECEIVED NYSCEF: 06/05/2023 2. Borrower must vacate the premises by 5/1/2021. 3. Deed-in-Lieu Conditions Only: A. Broom Swept Clean B. Clear Title Sick. Very sick. How sick? Let me count the ways: 40. $3,000 for a $700,000 plus property - its sick and frivolous; 41. And who is the Borrower? Certainly not the Brodwiths; 42. Vacate the Premises - Isn’t this frivolous when the Defendants have never been in the premises?; 43. Broom Swept Clean? Clear Title? Cant get more frivolous that this! It is respectfully submitted that the Bank of New York Mellon would never treat any white person in this manner! $3,000 for a $700,000 plus property! And the swindling racist Bank is huffy about some discovery motions! DISCOVERY AS PER APPELLATE DIVISION 44. Against, we urge this Court to accept the ruling of the Appellate Division and order the Bank to fully comply with the Brodwith Family’s First Notice for Production of Documents dated March 20, 2021; if the Bank claims it has responded, then requiring the Bank to file with NYSCEF any claimed prior discovery responses; WHEREFORE, for all the foregoing reasons, it is respectfully submitted that -11- 11 of 12 FILED: KINGS COUNTY CLERK 06/05/2023 09:36 PM INDEX NO. 508445/2015 NYSCEF DOC. NO. 309 RECEIVED NYSCEF: 06/05/2023 this Court should make and enter an order denying in its entirety the racist Bank’s cross-motion for sanctions and legal fees and whatever, and order the Bank to fully comply with the Brodwith Family’s First Notice for Production of Documents dated March 20, 2021; if the Bank claims it has responded, then requiring the Bank to file with NYSCEF any claimed prior discovery responses, and and grant Theresa Brodwith, Individually and as Administratrix and Heir of the Estate of Leroy Brodwith, such other, other further and different relief as to this Honorable Court may seem just and proper. Dated: New York, New York May 30, 2023 Respectfully submitted, /s/ Jonathan D. Bachrach 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 CERTIFICATION OF WORD COUNT Pursuant to Rule 33.1(h) of the Rules of this Court, the undersigned does hereby certify that the accompanying Affirmation in Support of Motion contains 2,477 words, excluding the parts of the document that are exempted by Rule 33.1(d). Dated: New York, NY May 30, 2023 Respectfully Submitted, /s/ JD Bachrach -12- 12 of 12