Wheeler v. HSBC Bank USA, Nat'l Ass'n

• Decision Date: 20 January 2012
• Docket Number: No. 37539/07.,37539/07.
• Parties: Tomeka Wheeler, Plaintiff, v. HSBC BANK USA, National Association, as Trustee for Home Equity Loan Trust Series Ace 2006–HE1, et al., Defendant.
• Court: New York Supreme Court

946 N.Y.S.2d 70

Tomeka Wheeler, Plaintiff,
v.
HSBC BANK USA, National Association, as Trustee for Home Equity Loan Trust Series Ace 2006–HE1, et al., Defendant.

No. 37539/07.

Supreme Court, Kings County, New York.

Jan. 20, 2012.

Henry W. Davoli, Jr., Rockville Center, Attorney for Plaintiff.

Donald G. Davis, Fidelity National Title Group, Inc., New York, Attorney for Defendant.

CAROLYN E. DEMAREST, J.

Defendant moves pursuant to 22 NYCRR § 202.21(e) to vacate the Note of Issue and Certificate of Readiness and strike the case from the trial calendar and to dismiss the complaint, pursuant to CPLR § 3216(e), for failure to prosecute this action and, pursuant to CPLR § 3126(3), as a sanction for the willful default of court-ordered discovery and false representations in the Certificate of Readiness.

BACKGROUND

In a related foreclosure action also before this court, HSBC v. Jones, Index No. 26000/06 (“HSBC Action”), HSBC sought to foreclose on the subject property 433 Bainbridge Street, Brooklyn, New York (“Property”). On October 10, 2007, plaintiff Tomeka Wheeler (“Wheeler”), who is not a party to the HSBC Action, commenced the present action seeking to restore title to the Property in her name.¹ On December 4, 2007, this court signed a judgment of foreclosure and sale in the HSBC Action. In February of 2008, HSBC and Wheeler entered into a stipulation that HSBC would not proceed with the foreclosure sale in the HSBC Action pending the determination or other disposition of the present matter.

On January 28, 2008, HSBC served a notice in the instant action to take the deposition of Wheeler and notice for discovery and inspection that included a number of specific documents relating to plaintiff's claims.² On March 26, 2010, HSBC served the first set of interrogatories upon Wheeler. On April 21, 2010, this court entered a preliminary conference order directing responses to discovery and inspection demands and answers to interrogatories on or before June 21, 2010 and the deposition of both parties on June 30, 2010.

At a compliance conference on July 21, 2010, a per diem attorney appeared for the plaintiff that was not the attorney of record and the matter was adjourned for a week. On July 21, 2010, HSBC received responses to the first request for the production of documents, but as of that date, had still not received interrogatory responses from Wheeler. On July 22, 2010, HSBC sent plaintiff's counsel, Henry W. Davoli, Jr. (“Davoli”), a letter indicating that the July 21, 2010 response by plaintiff was inadequate as the documents were “not organized in any manner whatsoever”, the plaintiff failed to identify which documents were responsive to each specific demand, the response did not include many of the documents requested or an explanation as to why they were not included, and no response to the first set of interrogatories was provided.

Plaintiff provided responses to interrogatories dated July 27, 2010, at the July 28, 2010 conference before this court. However, the interrogatories were only signed by Wheeler's attorney and they were unverified. Further, some of the interrogatories were not answered. At the July 28, 2010 conference, and in subsequent correspondence on September 24, 2010, HSBC indicated that plaintiff's prior responses were inadequate. On September 27, 2010, HSBC sent plaintiff a specific itemized list of six sets of documents that plaintiff did not include in the document production and twelve insufficient interrogatory responses. On September 29, 2010, the eve of a scheduled compliance conference, plaintiff's counsel sent HSBC a letter, not verified by his client, essentially denying the existence of any other documents, declining to respond further to the interrogatory demands, and noting that “a deposition would appear to be the place where you can obtain the details which you are perhaps seeking.”

Plaintiff's counsel, again, sent a per diem attorney that was not handling the discovery in this action to a compliance conference on September 30, 2010. At that conference, this court entered a short form order directing plaintiff “to serve supplemental responses to defendant's interrogatories and responses to defendant's document demands, as requested in letter dated September 27, 2010, within 30 days.” Plaintiff did not provide any supplemental response to HSBC in compliance with that order.

According to HSBC's attorney, plaintiff's counsel did not take any further actions to prosecute this matter after the order was issued on September 30, 2010. On July 14, 2011, HSBC served plaintiff's counsel with a letter, pursuant to CPLR § 3216, demanding that plaintiff resume prosecution of the action and to serve and file a Note of Issue within 90 days after receipt of the letter. HSBC indicated that the failure to resume prosecution of the action and file a Note of Issue would serve as the basis of a motion to dismiss for failure to prosecute. On September 9, 2011, Davoli filed a Note of Issue with the Kings County Clerk ³ in which he indicated that “[d]iscovery proceedings now know [sic] to be necessary completed”, “there are no outstanding requests for discovery”, “[t]here has been compliance with any...