U.S. Bank Trust, N.A. v. Carter

• Decision Date: 06 April 2022
• Docket Number: 2019–03020,Index No. 58033/13
• Parties: U.S. BANK TRUST, N.A., plaintiff-respondent, v. Brian CARTER, etc., appellant, et al., defendants; David A. Gallo, et al., nonparty-respondents.
• Court: New York Supreme Court — Appellate Division

204 A.D.3d 727
166 N.Y.S.3d 650

U.S. BANK TRUST, N.A., plaintiff-respondent,
v.
Brian CARTER, etc., appellant, et al., defendants;

David A. Gallo, et al., nonparty-respondents.

2019–03020
Index No. 58033/13

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

Argued—January 20, 2022
April 6, 2022

166 N.Y.S.3d 651

The Law Office of Marcia E. Kusnetz, P.C., Rye Brook, NY, for appellant.

Robertson, Anschutz, Schneid, Crane & Partners, PLLC, Westbury, NY (Joseph F. Battista of counsel), for plaintiff-respondent.

BETSY BARROS, J.P., REINALDO E. RIVERA, PAUL WOOTEN, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

204 A.D.3d 727

In an action to foreclose a mortgage, the defendant Brian Carter appeals from an order of the Supreme Court, Westchester County (Kathie E. Davidson, J.), dated March 8, 2019. The order, insofar as appealed from, granted the plaintiff's motion pursuant to CPLR 3103 for a protective order striking the discovery demands of the defendant Brian Carter, denied that branch of that defendant's motion which was pursuant to CPLR 3124 to compel nonparties David A. Gallo and Rosemary A. Klie to comply with a subpoena duces tecum and subpoena ad testificandum, denied that defendant's cross motion, inter alia, pursuant to CPLR 3124 to compel the plaintiff to comply with his discovery demands, and granted those branches of the cross motion of nonparties David A. Gallo and Rosemary A. Klie which were pursuant to CPLR 2304 and 3101 to quash the subpoena duces tecum and subpoena ad testificandum.

ORDERED that the order is affirmed insofar as appealed from, with costs to the plaintiff.

In 2013, the plaintiff commenced this action against, among others, the defendant Brian Carter (hereinafter the defendant) to foreclose a mortgage executed by the defendant on certain real property in New Rochelle. In September 2016, the defendant and his then counsel, Cabanillas & Associates, P.C. (hereinafter Cabanillas), executed a document whereby they agreed

204 A.D.3d 728

to substitute the defendant pro se in place of Cabanillas. In July 2018, the defendant retained the Law Office of Marcia E. Kusnetz, P.C. (hereinafter Kusnetz), to represent

166 N.Y.S.3d 652

him in this action. On November 28, 2018, Kusnetz filed a notice of appearance.

In November 2018, Kusnetz, on behalf of the defendant, served combined discovery demands on the plaintiff, and a subpoena duces tecum and subpoena ad testificandum on nonparties David A. Gallo and Rosemary A. Klie (hereinafter together the nonparties), the plaintiff's prior counsel. In December 2018, prior to the court-ordered deadline for responding to the defendant's discovery demands, the plaintiff moved pursuant to CPLR 3103(a) for a protective order striking the defendant's discovery demands as palpably improper. In February 2019, the defendant cross-moved, inter alia, pursuant to CPLR 3124 to compel the plaintiff to comply with his discovery demands. The defendant also separately moved, among other things, pursuant to CPLR 3124 to compel compliance with the subpoenas duces tecum and subpoena ad testificandum served on the nonparties. The nonparties cross-moved, among other things, pursuant to CPLR 2304 and 3101 to quash the subpoenas.

In an order dated March 8, 2019, the Supreme Court, inter alia, granted the plaintiff's motion and that branch of the nonparties’ cross motion which was to quash the subpoenas, and denied the defendant's motion and cross motion. The court determined,...