Household Fin. Realty Corp. v. Cioppa, 2014-10339, 2017-08061. Index No. 8320/10.

• Decision Date: 30 August 2017
• Docket Number: 2014-10339, 2017-08061. Index No. 8320/10.
• Citation: 153 A.D.3d 908,61 N.Y.S.3d 259
• Parties: HOUSEHOLD FINANCE REALTY CORPORATION OF NEW YORK, appellant, v. Alfred DELLA CIOPPA, et al, respondents, et al., defendants. (Appeal No. 1). Household Finance Realty Corporation of New York, respondent-appellant, v. Alfred Della Cioppa, et al., appellants-respondents, et al., defendants. (Appeal No. 2).
• Court: New York Supreme Court — Appellate Division

153 A.D.3d 908

61 N.Y.S.3d 259

HOUSEHOLD FINANCE REALTY CORPORATION OF NEW YORK, appellant,

v.Alfred DELLA CIOPPA, et al, respondents, et al., defendants. (Appeal No. 1).

Household Finance Realty Corporation of New York, respondent-appellant,

v.Alfred Della Cioppa, et al., appellants-respondents, et al., defendants. (Appeal No. 2).

2014-10339, 2017-08061. Index No. 8320/10.

Supreme Court, Appellate Division, Second Department, New York.

Aug. 30, 2017.

Alfred Della Cioppa, Hopewell Junction, NY, appellant-respondent pro se and for appellant-respondent Roberta Della Cioppa.

Phillips Lytle, LLP, Buffalo, NY (Preston L. Zarlock, John A. Mosychuk, and Richard T. Tucker of counsel), for respondent-appellant.

CHERYL E. CHAMBERS, J.P., SHERI S. ROMAN, HECTOR D. LaSALLE, and BETSY BARROS, JJ.

In an action to foreclose a mortgage, the defendants Alfred Della Cioppa and Roberta Della Cioppa appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Dutchess County (Rosa, J.), entered August 26, 2014, as, upon an order of the same court dated March 5, 2014, granting their motion for summary judgment dismissing the complaint, sua sponte, deemed the underlying loan current and directed them to resume making monthly payments on the subject loan in the amount of $3,068.63, commencing April 15, 2014, with leave to the plaintiff to commence a new foreclosure action in the event they failed to make any monthly payment. The plaintiff cross-appeals, as limited by its brief, from (1) so much of an order of the same court dated September 3, 2013, as granted those defendants' motion pursuant to CPLR 3126 to impose sanctions on the plaintiff to the extent of prohibiting the plaintiff from producing evidence for which information had been sought by them but not disclosed by the plaintiff, and (2) so much of the judgment as, upon the order dated March 5, 2014, granting those defendants' motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff violated Banking Law § 6–m, is in favor of those defendants and against it dismissing the complaint.

ORDERED that the cross appeal from the order dated September 3, 2013, is dismissed; and it is further,

ORDERED that the judgment is reversed, on the law and in the exercise of discretion, so much of the order dated September 3, 2013, as granted the motion of the defendants Alfred Della Cioppa and Roberta Della Cioppa pursuant to CPLR 3126 to impose sanctions on the plaintiff to the extent of prohibiting the plaintiff from producing evidence for which information had been sought by them but not disclosed by the plaintiff, and the order dated March 5, 2014, are vacated, and the matter is remitted to the Supreme Court, Dutchess County, for a new determination of those defendants' motion for summary judgment dismissing the complaint; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The cross appeal from the intermediate order dated September 3, 2013, must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on the cross appeal from the order are brought up for review and have been considered on the cross appeal from the judgment (see CPLR 5501[a][1] ).

In this foreclosure action, the defendants Alfred Della Cioppa and Roberta Della Cioppa (hereinafter together the defendants) moved pursuant to CPLR 3126 to impose sanctions on the plaintiff for its failure to comply with two orders of the Supreme Court which set deadlines for the plaintiff to respond to discovery demands. The plaintiff opposed the motion, arguing in part that it had made a good faith effort to comply with the defendants' discovery demands, that it had provided a response to the demands, and that any brief delay was unintentional. In an order dated September 3, 2010, the Supreme Court granted the defendants' motion to the extent of prohibiting the plaintiff from producing evidence either at trial or in support of any dispositive motion for which information was sought by the defendants but not disclosed. Thereafter, the defendants moved for summary judgment dismissing the complaint on the ground that the plaintiff violated Banking Law § 6–m. The plaintiff opposed the motion, submitting only its attorney's affirmation in opposition. In an order dated March 5, 2014, the Supreme Court granted the defendants' motion, and thereupon deemed the loan current, with the plaintiff forfeiting all interest due from the date of the default to April 15, 2014, at which time the defendants would be obligated to resume making monthly payments on the loan in an amount specified by the court. A judgment was entered upon the orders on August 26, 2014.

"The Supreme Court has broad discretion in supervising disclosure and in resolving discovery disputes" ( Clarke v. Clarke, 113 A.D.3d 646, 646, 979 N.Y.S.2d 124 ; see H.P.S. Mgt. Co., Inc. v. St. Paul Surplus Lines Ins. Co., 127 A.D.3d 1018, 7...