Citibank, N.A. v Feustel
Annotate this CaseDecided on December 28, 2017
Supreme Court, Suffolk County
Citibank, National Association AS TRUSTEE FOR GSAA HOME EQUITY TRUST 2007-9, ASSET-BACKED CERTIFICATES SERIES 2007-9, Plaintiff,
against
Noel Feustel; VICTORIA PETERSON; BARRY A. KAMEN, PLLC; BRUCE A. RICH AS TRUSTEE OF THE VILLAGE OF SALTAIRE, SUFFOLK COUNTY, CAPITAL ONE BANK USA, NA, GEORGE ROY HILL III, HILLARY RICHARD AS TRUSTEE OF THE VILLAGE OF SALTAIRE, SUFFOLK COUNTY; JENNIFER FRIEDBERG; MIDLAND FUNDING OF DELAWARE LLC AS SUCCESSOR IN INTEREST TO A CHASE ACCOUNT, PATRICIA LAMA; ROBERT LYNN COX II AS TRUSTEE OF THE VILLAGE OF SALTAIRE, SUFFOLK COUNTY; SCOTT S. ROSENBLUM AS MAYOR OF THE VILLAGE OF SALTAIRE, SUFFOLK COUNTY SUSAN OKON, THE INCORPORATED VILLAGE OF SALTAIRE, SUFFOLK COUNTY, WELLS FARGO BANK, N.A.; JOHN DOE (SAID NAME BEING FICTITIOUS, IT BEING THE INTENTION OF PLAINTIFF TO DESIGNATE ANY AND ALL OCCUPANTS OF PREMISES BEING FORECLOSED HEREIN, AND ANY PARTIES, CORPORATIONS OR ENTITIES, IF ANY, HAVING OR CLAIMING AN INTEREST OR LIEN UPON THE MORTGAGED PREMISES.), Defendants.
35293-2012
GROSS POLOWY, LLC
Attorneys for Plaintiff 1775 Wehrle Drive, Suite 100
Williamsville, New York 14221
Ivan E. Young, Esq.
YOUNG LAW GROUP
Attorney for Defendant, Noel Feustel
80 Orville Drive, Suite 100
Bohemia, New York 11716
Victoria Petersen
Defendant in default
Robert F. Quinlan, J.
Upon the following papers numbered 1 to 46 read on this motion by defendant to vacate the note of issue and strike plaintiff's complaint for failure to comply with discovery: Notice of Motion and supporting papers 1-33; Answering Affidavits and supporting papers 34-46; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that the purported motion by defendant Victoria Petersen to vacate the note of issue and strike plaintiff's complaint pursuant to CPLR 3216 (3) for failure to comply with discovery is denied, as this defendant is in default in answering and has not moved to vacate her default, which was fixed and set by the court's order of August 11, 2016; and it is further
ORDERED that the motion by defendant Noel Feustel to vacate the note of issue and strike plaintiff's complaint pursuant to CPLR 3216 (3) for failure to comply with discovery is denied.
PROCEDURAL HISTORY
This is an action to foreclose a mortgage on residential real property known as 39 South Snedecor Avenue, Bayport, Suffolk County, New York given by defendants Noel Feustel and Victoria Petersen ("defendant-mortgagors") to Wells Fargo Bank, N.A. ("Wells"), a predecessor in interest to plaintiff Citibank, National Association as Trustee for GSAA Home Equity Trust 2007-9, Asset -backed Certificate Series 2007-9 ("plaintiff") on May 23, 2007 to secure a note given the same day to Wells by defendant Noel Feustel ("defendant"). Plaintiff subsequently brought this action upon the default of defendant-mortgagors in their payment obligations under the note and mortgage and defendant filed an answer raising affirmative defenses. Defendant Victoria Petersen never answered.
The defendant and plaintiff ("the parties") engaged in discovery, resulting in a Differentiated Case Management Order/Stipulation dated November 7, 2013 ("the 2013 Discovery Order") while the case was assigned to Justice Arthur G. Pitts of this court. Thereafter, plaintiff moved for summary judgment, an order of reference pursuant to RPAPL § 1321 and other associated relief (Mot. Seq. #001) and defendant cross-moved to dismiss the complaint (Mot. Seq. # 002). Both motions were submitted before Justice Pitts on July 16, 2014. On June 29, 2015, by an Administrative Order of the Suffolk County District Administrative Judge, the case was transferred to Acting Supreme Court Justice Richard I Horowitz, who conferenced it in an unsuccessful attempt to reach a settlement, and in January 2016 the case was transferred to this part.
On August 11, 2016 the motions were orally argued before the court and an oral decision was placed upon the record by the court. The court denied defendant's cross-motion, granted plaintiff's application to amend the caption by removing defendant Barry A. Kamen, PLLC and the "John Doe" defendant and granted plaintiff partial summary judgment pursuant to CPLR 3212 (g) dismissing all of defendant's affirmative defenses except the Sixth Affirmative Defense. That affirmative defense could not be dismissed as plaintiff had not established the mailing of the notices required RPAPL § 1304. As a result, plaintiff's application for the appointment of a referee was denied. The court set this remaining issue for a limited issue trial pursuant to CPLR § 2218.
To assist in that trial, the court issued a written Discovery Order and Schedule ("the 2016 Discovery Order") on August 11, 2016, which authorized discovery only as to the limited issue, required all discovery demands were to be filed within 30 days of the order and all discovery was to be completed within 120 days of the order.
The order further authorized second summary judgement motions by the parties upon the completion of discovery and within thirty (30) days of the filing od the note of issue (CPLR 3212 [a]). The order also set a certification conference in the part for December 21, 2016.
The court's records indicate defendant failed to appear at the certification conference on December 21, 2016, it was adjourned to January 18, 2017 and the court notified defendant to appear. Defendant failed to appear on the adjourned date and the court ordered plaintiff to execute the Compliance Conference Order and to file a Note of Issue by February 22, 2017. Plaintiff filed the note of issue, dated January 25, 2017, indicating therein that there were no outstanding demands for discovery. Plaintiff mailed defendant's counsel notice of the filing of the note of issue on January 25, 2017. Defendants filed this motion (Mot. Seq. #003) to vacate the note of issue on February 15, 2017, within 20 days of mailing of the note of issue upon counsel. In addition to vacating the note of issue, defendant seeks to strike and dismiss plaintiff's complaint for failure to comply with his discovery demands.
Pursuant to the order of August 11, 2016, plaintiff filed a successive motion for summary judgment, also returnable March 9, 2017 (Mot. Seq# 004). Circumstances prevented defendant [*2]from filing his opposition and cross-motion (Mot. Seq. #005) until June 21, 2017 and all motions were marked submitted on July 13, 2017. This motion was held in abeyance pending the decisions on those motions, which were rendered by a separate order of this date.
ONLY ANSWERING DEFENDANT MAY MOVE
The court first notes that defendant styles his motion as being made not only on his behalf, but also on behalf of co-defendant Victoria Petersen. As noted above, only defendant filed an answer and the court's decision of August 11, 2016 fixed and set the default of Ms. Petersen. A party may not move for affirmative relief of a non-jurisdictional nature without first moving to vacate her default (see Chase Home Finance, LLC v Garcia, 140 AD3d 820 [2d Dept 2016]; Nationstar Mortgage, LLC v Avella, 142 AD3d 594 [2d Dept 2016];Southstar III, LLC v Ettienne, 120 AD3d 1332 [2d Dept 2014]; U.S. Bank Natl. Assn. v Gonzalez, 99 AD3d 694 [2d Dept 2012]; Deutsche Bank Trust Co., Am. v. Stathaklis, 90 AD3d 694 [2d Dept 2011]; Holubar v. Holubar, 89 AD3d 802 [2d Dept 2011]). This is so even if compliance with RPAPL § 1304 is the issue before the court, as here on the limited issue trial (see HSBC Bank, N.A. v Clayton, 146 AD3d 942 [2d Dept 2017]); therefore defendant's motion is considered only as to him, not Ms. Petersen.
VACATUR OF NOTE OF ISSUE DENIED
Defendant argues that the note of issue must be vacated as there was outstanding discovery, a fact defendant claims plaintiff misrepresented in the Certificate of Readiness filed with the Note of Issue. In addition, he argues that plaintiff's complaint should be stricken for this egregious misstatement and plaintiff's failure to comply with what defendant characterizes as his Second Combined Discovery Demands, dated December 21, 2016 and mailed to plaintiff's counsel on December 22, 2016.
Defendant makes no argument that plaintiff failed to comply with the 2013 Discovery Order. Whether complied with or not, most of that discovery appears to have been aimed at plaintiff's standing to prosecute the action, which the court determined had been established in its decision of August 11, 2016. There is no claim that there was discovery outstanding from the 2013 discovery order that relates to the limited issue trial.
The 2016 Discovery Order set forth a specific schedule for the filing of discovery demands and the completion of discovery. It is beyond dispute that a trial court has broad discretion in supervising disclosure (see Dunsmore v Paprin, 114 AD2d 836 [2d Dept 1985]; Castillo v Henry Schein, Inc., 259 AD2d 651 [2d Dept 1999]). A court has the power to control its calendar and set reasonable timetables for discovery (see Travelers Ins. Co. v New York Yankees, 102 AD2d 851 [2d Dept 1984]).
The supervision of disclosure and setting reasonable terms and conditions therefor rest within the sound discretion of the trial court (see Gilman & Ciocoa v Walsh, 45 ADC3d 531 [2d [*3]Dept 2007]; Gould v Decolator, 131 AD3d 445 [2d Dept 2015]; Hackshaw v Mercy Medical Center, 139 AD3d 798 [2d Dept 2007]). In issuing the 2016 Discovery Order the court was mindful that this action had been pending since 2012, that the parties had entered into the 2013 Discovery Order yet appeared to have not acted in compliance with their own stipulation, and that as a result of the court's decision regarding Mot. Seqs #001 and #002, there remained only one limited issue to be determined at trial. For these reasons the court set a tight schedule for service of discovery demands and completion of discovery so that this action could promptly reach resolution by a subsequent summary judgment motion or trial.
Defendant chose to disregard the deadlines set in the 2016 Discovery Order and failed to appear for the certification conference on December 21, 2016 and January 18, 2017. Without communicating with the court, defendant took it upon himself to mail an untimely discovery demand on December 22, 2016, 103 days after the court's deadline for service of discovery demands and almost two weeks after the court's deadline for the completion of all discovery. This discovery demand was in clear violation of the court's written order and was, as plaintiff correctly treated it, a nullity. Defendant could have resolved this issue by appearing at either of the certification conferences, argued for the need for this discovery and asked to extend the time for discovery; instead defendant stuck his head in the sand, mailed the late, unauthorized discovery demand and appeared at neither conference. Upon defendant's failure to appear at the second certification conference, without contacting the court and providing an excuse for not appearing at either conference, the court was within its rights to direct plaintiff sign the certification document and order the filing of a Note of Issue.
As defendant's discovery demand was served in violation of the 2016 Discovery Order, it was a nullity and plaintiff correctly represented that there was no outstanding discovery in filing its statement of readiness. As defendant provides no other basis for vacating the note of issue, that portion of defendant's application is denied.
STRIKING OF COMPLAINT WOULD HAVE BEEN ABUSE OF DISCRETION
Even if the court had granted vacatur of the note of issue, defendant's application to dismiss plaintiff's complaint pursuant to CPLR 3126 (3) would have been denied. The drastic remedy of striking a pleading for failure to comply with disclosure lies within the sound discretion of the trial court (see Arpino v F.J. F. & Sons Elec. Co., Inc., 102 AD3d 201 [2d Dept 2013]; Teitelbaum v Maimonides Medical Center, 144 AD3d 1013 [2d Dept 2016]). Generally this has been limited to situations in which, unlike here, court-ordered disclosure has been disregarded and the failure to comply is clearly wilful and contumacious (see Orgel v Stewart Title Ins. Co., 91 AD3d 922 [2d Dept 2012]; Mangione v Jacobs, 121 AD3d 953 [2d Dept 2014]). Here, there was no court order which plaintiff defied. Even if there had been a timely served discovery demand, and if vacatur had been granted, all this court would have done would be to order compliance with the discovery demand; it would not "strike" the complaint. This portion of defendant's application is dismissed.
The action remains on the court's trial calendar for March 2, 2018 at 9:30 AM.
This constitutes the Order and decision of the Court.
Dated: December 28, 2017
_______________________________________
Hon. Robert F. Quinlan, J.S.C.
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