ACG Credit Co. II v. Hearst

Decision Date23 January 2013
Citation102 A.D.3d 817,2013 N.Y. Slip Op. 00298,958 N.Y.S.2d 463
PartiesACG CREDIT COMPANY II, LLC, respondent, v. Veronica HEARST, appellant, et al., defendant.
CourtNew York Supreme Court — Appellate Division

OPINION TEXT STARTS HERE

Cuomo LLC, New York, N.Y. (Matthew Cuomo and Sherri A. Jayson of counsel), for appellant.

Schiff Hardin LLP, New York, N.Y. (Mathew B. West and Matthew Parisi of counsel), for respondent.

WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, THOMAS A. DICKERSON, and PLUMMER E. LOTT, JJ.

In an action to recover the balance of a secured term loan note, the defendant Veronica Hearst appeals from an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered November 22, 2011, which denied her motion to vacate the note of issue and a trial readiness order of the same court entered September 28, 2011, and to direct that Ian Peck, the plaintiff's president, appear for a further deposition.

ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, the motion is granted, and the note of issue and the trial readiness order entered September 28, 2011, are vacated.

The plaintiff made a secured loan to the defendant Veronica Hearst. Following Hearst's default on the loan, the plaintiff sold off the collateral provided by Hearst, and then commenced this action to obtain a deficiency judgment for the outstanding balance of the loan. Hearst argued that the plaintiff's sale of the collateral was not commercially reasonable, contending that there was a wide disparity between the actual value of the collateral and the price at which the plaintiff sold it. There is a sharp dispute between the parties regarding the market value of the collateral at the time of the sale by the plaintiff.

During the deposition of a nonparty witness, Hearst discovered that the plaintiff had engaged in an apparent second sale of a portion of the collateral at some point within the 15–month period following the first sale. Accordingly, Hearst moved to vacate the note of issue and trial readiness order, and to conduct a further deposition of the plaintiff's president, Ian Peck, in order to ascertain the terms of the apparent second sale and the circumstances surrounding the plaintiff's release of this portion of the collateral. The Supreme Court denied the motion.

CPLR 3101(a) requires full disclosure of all evidence material and necessary in the prosecution or defense of an action ( see Del Vecchio v. Danielle Assoc., LLC, 94 A.D.3d 941, 942, 942 N.Y.S.2d 217;Vodoff v. Mehmood, 92 A.D.3d 773, 938 N.Y.S.2d 472). The statute should be construed liberally to permit the discovery of material that will sharpen the issues for trial and reduce delay and prolixity ( see Montalvo v. CVS Pharmacy, Inc., 81 A.D.3d 611, 612, 915 N.Y.S.2d 865)...

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  • Abakporo v. News
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    • New York Supreme Court — Appellate Division
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  • M & T Bank v. Sailor
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    ...& Co., 47 N.Y.2d 128, 134, 417 N.Y.S.2d 47, 390 N.E.2d 766 ). The plaintiff did not meet its burden (see ACG Credit Co. II, LLC v. Hearst, 102 A.D.3d 817, 818, 958 N.Y.S.2d 463 ; Commerce Commercial Leasing, LLC v. PIO Enters., Inc., 78 A.D.3d at 1107, 913 N.Y.S.2d 248 ; Ford Motor Credit C......

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