U.S. Bank Nat'l Ass'n v. Harrington

• Decision Date: 19 April 2018
• Docket Number: 524321
• Citation: 75 N.Y.S.3d 638,160 A.D.3d 1230
• Parties: U.S. BANK NATIONAL ASSOCIATION, as Trustee FOR PROF–2013–M4 REMIC TRUST VI, Appellant, v. Amy L. HARRINGTON et al., Respondents, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

160 A.D.3d 1230
75 N.Y.S.3d 638

U.S. BANK NATIONAL ASSOCIATION, as Trustee FOR PROF–2013–M4 REMIC TRUST VI, Appellant,
v.
Amy L. HARRINGTON et al., Respondents, et al., Defendants.

524321

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

Calendar Date: February 13, 2018
Decided and Entered: April 19, 2018

75 N.Y.S.3d 639

Knuckles, Komosinski & Manfro, LLP, Elmsford (Michel Lee of counsel), for appellant.

Harlem & Jervis, Oneonta (Eric V. Jervis of counsel), for respondents.

Before: McCarthy, J.P., Lynch, Clark, Aarons and Pritzker, JJ.

MEMORANDUM AND ORDER

Clark, J.

Appeals (1) from an order of the Supreme Court (Coccoma, J.), entered July 27, 2016 in Otsego County, which, among other things, denied plaintiff's motion for summary judgment, and (2) from an order

75 N.Y.S.3d 640

of said court, entered November 1, 2016 in Otsego County, which, among other things, granted a motion by defendants Amy L. Harrington and Kevin J. Harrington to strike the complaint.

In October 2007, defendants Amy L. Harrington and Kevin J. Harrington (hereinafter collectively referred to as defendants) executed a note in favor of First Horizon Home Loans, secured by a mortgage on real property located in the City of Oneonta, Otsego County. For recording purposes, the mortgage names Mortgage Electronic Registration Systems Inc. as nominee and mortgagee. Subsequent assignments of the mortgage resulted in plaintiff acquiring possession of that mortgage in July 2015.

In December 2014, plaintiff commenced this foreclosure action claiming that defendants failed to pay the monthly installments as of June 1, 2009. Disputing this allegation, defendants answered, asserting, among other things, that they had opted into a biweekly payment plan and that plaintiff and/or its predecessors in interest had subsequently failed to account for, or misapplied, defendants' payments. After attempts to resolve the alleged continued misapplication of payments were unsuccessful, defendants ceased making payments in or about March 2011, although at some point thereafter defendants resumed making their payments. In January 2015, defendants served an omnibus discovery demand seeking from plaintiff a complete accounting and payment history. Plaintiff thereafter moved for summary judgment. In July 2016, Supreme Court denied plaintiff's motion for summary judgment and ordered plaintiff to respond to defendants' omnibus discovery demands within 30 days. In August 2016, plaintiff responded to the discovery demand stating, in relevant part, that it was not in possession of certain requested payment history statements from its predecessors and that said statements were either irrelevant or nonexistent. Viewing plaintiff's discovery response as inadequate, defendants moved to strike the complaint pursuant to CPLR 3126. In November 2016, Supreme Court granted defendant's motion to strike and dismissed plaintiff's complaint without prejudice. Plaintiff now appeals from the July 2016 order denying its motion for summary judgment and the November 2016 order striking the complaint.

Plaintiff contends that Supreme Court abused its discretion in granting defendants' motion to strike and dismissing plaintiff's complaint without prejudice. We disagree. " ‘Where a trial court determines that a party has failed to comply with its discovery obligations, it has broad discretion to remedy the violation’ " ( Citibank, N.A. v. Bravo , 140 A.D.3d 1434, 1435, 34 N.Y.S.3d 678 [2016], quoting BDS Copy Inks, Inc. v. International Paper , 123 A.D.3d 1255, 1256, 999 N.Y.S.2d 234 [2014] ). With regard to the question of whether a party "wil[l]fully fails to disclose information which the court finds ought to have been disclosed" ( CPLR 3126 ), "[a]n adverse inference may be drawn where a party has not made a ‘meaningful attempt to comply with disclosure and [has] an entirely inadequate excuse for such failure’...