Fed. Nat'l Mortg. Ass'n v. Johnson

177 A.D.3d 1148

113 N.Y.S.3d 364

FEDERAL NATIONAL MORTGAGE ASSOCIATION, Appellant,

v.Robert W. JOHNSON et al., Respondents, et al., Defendants.

528824

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

Calendar Date: October 18, 2019

Decided and Entered: November 21, 2019

Gross Polowy, LLC, Westbury (Marie Nicholson of counsel), for appellant.

Welch & Zink, Corning (Jeff N. Evans of counsel), for Robert W. Johnson, respondent, and Carl T. Hayden, Elmira, respondent pro se.

Before: Egan Jr., J.P., Lynch, Clark and Pritzker, JJ.

MEMORANDUM AND ORDER

Pritzker, J. Appeal from an order of the Supreme Court (Keene, J.), entered September 10, 2018 in Schuyler County, which partially granted defendant Carl T. Hayden's motion to, among other things, compel disclosure and for counsel fees.

In 2005, defendant Brad S. Johnson executed a promissory note in favor of PHH Mortgage Services Corporation that was secured by a mortgage on real property. In 2008, Brad Johnson transferred the property to defendant Robert W. Johnson. After the mortgage and note were assigned to plaintiff, in July 2016, plaintiff commenced this mortgage foreclosure action against defendants, contending that Brad Johnson failed to make the January 2015 payment as well as subsequent payments. Robert Johnson answered, asserting that plaintiff failed to provide him with appropriate notices as the owner and resident of the property. Defendant Carl T. Hayden, a retired attorney and the holder of a judgment encumbering the subject property, did not file an answer, but did file a limited notice of appearance demanding service of all papers and notice of proceedings. Plaintiff thereafter moved for summary judgment and dismissal of the affirmative defenses, which the court denied.¹

At a May 2018 pretrial conference, the parties consented to a scheduling order for the purpose of preparing for trial that directed the parties to serve discovery demands by May 18, 2018 and responses to those demands by June 29, 2018. On May 8, 2018, Hayden served discovery demands on plaintiff's counsel. On July 10, 2018, Hayden sent a letter to plaintiff's counsel stating that plaintiff had failed to comply with the discovery demands. Hayden further stated that he would move for relief and sanctions if plaintiff's counsel failed to comply with the discovery demands by July 21, 2018. Plaintiff did not respond by that date and, on July 30, 2018, Hayden moved to compel disclosure and for sanctions, including dismissal of the complaint and counsel fees. Plaintiff opposed the motion and Supreme Court partially granted Hayden's motion by compelling disclosure and awarding Hayden the costs and counsel fees incurred in connection with the motion. Plaintiff appeals.

In a companion appeal, Federal Natl. Mtge. Assn. v. Johnson , 177 A.D.3d 1149, 113 N.Y.S.3d 362 [decided herewith] ), this Court reversed Supreme Court's denial of plaintiff's motion for summary judgment. As such, plaintiff's appeal from that portion of the...