Motion for Entry of Default in Churchill Circle Llc v. Calvin D. Nesbitt, Hillerine Nesbitt, Wells Fargo Bank, N.A., Secretary Of Housing And Urban Development, Key Bank Of New York, N.A. Sbm To Key Bank Of Western New York, Na, Community National Bank, New York City Environmental Control Board| Trellis.Law

On November 19, 2020 a Motion-Secondary was filed involving a dispute between Churchill Circle Llc, and Calvin D. Nesbitt, Community National Bank, Hillerine Nesbitt, Key Bank Of New York, N.A. Sbm To Key Bank Of Western New York, Na, New York City Environmental Control Board, Secretary Of Housing And Urban Development, Wells Fargo Bank, N.A., for Real Property - Other (Partition) in the District Court of Bronx County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
-------------------------------------------------------------------X
CHURCHILL CIRCLE LLC,

Plaintiff, Index No.: 33952/2020E

-against-

CALVIN D. NESBITT; HILLERINE NESBITT,
WELLS FARGO BANK, N.A.; SECRETARY OF
HOUSING AND URBAN DEVELOPMENT; KEY
BANK OF NEW YORK, N.A. SBM TO KEY BANK
OF WESTERN NEW YORK, NA; COMMUNITY
NATIONAL BANK; NEW YORK CITY
ENVIRONMENTAL CONTROL BOARD,

Defendants.
-------------------------------------------------------------------X

MEMORANDUM OF LAW ON BEHALF OF DEFENDANT WELLS FARGO BANK,
N.A. IN OPPOSTION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND
DEFAULT JUDGMENT AND IN SUPPORT OF ITS
CROSS MOTION FOR SANCTIONS PURSUANT TO CPLR § 3126

FIDELITY NAITONAL LAW GROUP
Meghan R. Graziadei, Esq.
711 Third Avenue, 8th Floor
New York, New York 10017
Tel: (646) 432-8588
Fax: (646) 219-1670
Meghan.Graziadei@fnf.com
Attorneys for Defendant Wells Fargo Bank, N.A.

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TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES .......................................................................................................... ii

PRELIMINARY STATEMENT .....................................................................................................1

STATEMENT OF FACTS ..............................................................................................................2

A. Procedural Background ..................................................................................................2

i. This Action .........................................................................................................2

ii. Outstanding Discovery.......................................................................................4

iii. The Second Action..............................................................................................5

B. Title to the Property .......................................................................................................6

LEGAL ARGUMENT .....................................................................................................................7

I. PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD BE
DENIED BECAUSE WELLS FARGO HAS NOT HAD AN
ADEQUATE OPPORTUNITY TO CONDUCT DISCOVERY .............................................8

II. THE DOCUMENTARY EVIDENCE AND DISPUTED ISSUES OF
MATERIAL FACT ALSO PRECLUDE SUMMARY JUDGMENT ...................................11

III. PLAINTIFF’S WILLFUL AND BAD FAITH REFUSAL TO ANSWER
WELLS FARGO’S INTERROGATORIES, TO PRODUCE
DOCUMENTS, AND ITS ATTEMPTS TO DELAY AND IMPEDE
DISCOVERY VIA THE FILING OF THIS MOTION, WARRANTS
IMPOSITION OF THE SEVEREST OF SANCTIONS ........................................................17

IV. ANY DEFAULT JUDGMENT ENTERED AGAINST THE CO-
DEFENDANTS SHOULD HAVE NO IMPACT UPON WELLS FARGO'S
CLAIMS AND DEFENSES ..................................................................................................20

CONCLUSION ..............................................................................................................................20

CERTIFICATE OF WORD COUNT ............................................................................................22

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TABLE OF AUTHORITIES
Page
Cases:

1.2.3. Holding Corp. v. Exeter Holding, Ltd.,
72 A.D.3d 1040 (2d Dept. 2010) ...........................................................................................14

10 Bethpage Rd., LLC v. 114 Woodbury Realty, LLC,
178 A.D.3d 751 (2d Dept. 2019) .............................................................................................7

114 Woodbury Realty, LLC v. 10 Bethpage Rd., LLC,
178 A.D.3d 757 (2d Dept. 2019) .............................................................................................7

Aguilar v. City of New York,
162 A.D.3d 601 (1st Dept. 2018) .............................................................................................7

Albany Cty. Sav. Bank v. McCarty,
149 N.Y. 71 (1896) ................................................................................................................12

Alvarez v. Prospect Hosp.,
68 N.Y.2d 320 (1986) ........................................................................................................8, 11

Amico v. Melville Volunteer Fire Co.,
39 A.D.3d 784 (2d Dept. 2007) ...............................................................................................9

Arata v. Behling,
57 A.D.3d 925 (2d Dept. 2008) .............................................................................................15

Bayview Loan Servicing, LLC v. White,
134 A.D.3d 755 (2d Dept. 2015) ...........................................................................................14

Brophy v. Metro. Life Ins. Co.,
278 A.D.2d 351 (2d Dept. 2000) ...........................................................................................11

Chmelovsky v. Country Club Homes, Inc.,
106 A.D.3d 684 (2d Dept. 2013) ...........................................................................................11

Churchill Circle LLC v. Calvin D. Nesbitt, et al.,
Index No. 807675/2021E .........................................................................................................5

Cordero v. Escobar,
186 A.D.3d 1315 (2d Dept. 2020) ...........................................................................................8

Cruz v. McAneney,
31 A.D.3d 54 (2d Dept. 2006) ...............................................................................................16

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Farano v. Stephanelli,
7 A.D.2d 420 (1st Dept. 1959) ...............................................................................................16

Genter v. Morrison,
1857 WL 6840 (N.Y. Gen. Term 1857).................................................................................15

Gomez v. Kozot Realty Corp.,
142 A.D.3d 824 (2d Dept. 2016) .............................................................................................8

Henderson-Jones v. City of New York,
87 A.D. 3d 498 (1st Dept. 2011) ............................................................................................17

Juseinoski v. Bd. of Educ. of City of New York,
15 A.D.3d 353 (2005) ............................................................................................................13

Juseinoski v. New York Hosp. Med. Ctr. of Queens,
29 A.D.3d 636 (2d Dept. 2006) .......................................................................................13, 17

Korn v. Korn,
135 A.D.3d 1023 (3d Dept. 2016) .........................................................................................12

Lewis v. Agency Rent-A-Car,
168 A.D.2d 435 (2d Dept. 1990) .................................................................................9, 10, 11

Lucky's Real Est. Grp., LLC v. Powell,
189 A.D.3d 1202 (2d Dept. 2020) .........................................................................................12

Malester v. Rampil,
118 A.D.3d 855 (2d Dept. 2014) ...........................................................................................11

Martin v. Briggs,
235 A.D.2d 192 (1st Dept. 1997) .........................................................................................7, 8

Matter of Blango,
166 A.D.3d 767 (2d Dept. 2018) ...........................................................................................14

Moffett v. Gerardi,
75 A.D.3d 496 (2d Dept. 2010) .............................................................................................12

Mortgage Elec. Registration Systems, Inc. v. Bank,
4 Misc. 3d 1030(A) (Richmond Cty. Sup. Ct. June 7, 2004).................................................11

O'Brien v. Dalessandro,
43 A.D.3d 1123 (2d Dept. 2007) .....................................................................................15, 16

iii

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OK Petroleum Distribution Corp. v., Nassau/Suffolk Fuel Oil Corp.,
17 A.D.3d 551 (2d Dept. 2005) ...............................................................................................8

Osborne v. Zornberg,
16 A.D.3d 643 (2d Dept. 2005) .............................................................................................12

Plaza Invs. v. Kim,
208 A.D.2d 704 (2d Dept. 1994) .............................................................................................9

Ptasznik v. Schultz,
223 A.D.2d 695 (2d Dept. 1996) ......................................................................................... 7-8

Real Spec Ventures, LLC v. Est. of Deans,
87 A.D.3d 1000 (2d Dept. 2011) ...........................................................................................14

Rothschild v. Title Guarantee & Trust Co.,
204 N.Y. 458 (1912) ..............................................................................................................13

Sharp v. Kosmalski,
40 N.Y.2d 119 (1976) ......................................................................................................15, 16

Sillman v. Twentieth Century-Fox Film Corp.,
3 N.Y.2d 395 (1957) ............................................................................................................7, 8

Town of N. Hempstead v. Bonner,
77 A.D.2d 567 (2d Dept. 1980) .............................................................................................13

Turiano v. Schwaber,
180 A.D.3d 950 (2d Dept. 2020) ...........................................................................................18

U.S. Bank Nat'l Ass'n v. Sirota,
189 A.D.3d 927 (2d Dept. 2020) ...........................................................................................19

Valdivia v. Consol. Resistance Co. of Am.,
54 A.D.3d 753 (2d Dept. 2008) ...............................................................................................9

Vega v. Restani Const. Corp.,
18 N.Y.3d 499 (2012) ..........................................................................................................7, 8

Venables v. Sagona,
46 A.D.3d 672 (2d Dept. 2007) ...............................................................................................9

William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh,
22 N.Y.3d 470 (2013) ..............................................................................................................8

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Winegrad v. New York Univ. Med. Ctr.,
64 N.Y.2d 851 (1985) ..............................................................................................................8

Wolfson v. Nassau County Medical Center,
141 A.D. 2d 815 (2d Dept. 1988) ..........................................................................................18

Zuckerman v. City of New York,
49 N.Y.2d 557 (1980) ............................................................................................................12

Rules, Laws and Statutes:

22 NYCRR 130–1.1 .........................................................................................................................9

CPLR § 3124..............................................................................................................................1, 19

CPLR § 3126........................................................................................................................1, 17, 19

CPLR § 3211..............................................................................................................................5, 18

CPLR 3212.......................................................................................................................8, 9, 13, 17

CPLR 3214.......................................................................................................................................4

NY Gen Oblig. Law § 5-703..........................................................................................................15

RPAPL § 1501 .................................................................................................................................2

RPAPL § 291 ...................................................................................................................................3

RPL § 243 ......................................................................................................................................15

Rule 202.8-g .....................................................................................................................................2

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Defendant Wells Fargo Bank, N.A. (“Wells Fargo”) submits this Memorandum of Law in

opposition to Plaintiff Churchill Circle LLC’s (“Plaintiff”) motion for summary judgment and

default judgment (the “Motion”) and in support of its cross motion for sanctions. Wells Fargo

opposes this Motion on the grounds that: (i) it is premature and an obvious attempt to avoid

producing discovery; (ii) Plaintiff has not established as a matter of law that there are no material

issues of fact; and (iii) any default judgment entered against co-defendants should have no impact

on Wells Fargo’s claims and defenses. Lastly, Plaintiff’s willful attempt to delay and impede

discovery via the filing of this Motion warrants the imposition of sanctions pursuant to CPLR

§ 3126. Should the Court decline to impose sanctions, Wells Fargo requests that this Court enter

an order pursuant to CPLR § 3124 and CPLR § 3126 mandating that Plaintiff produce the

outstanding interrogatory responses and document demands or its pleadings will be stricken.

PRELIMINARY STATEMENT

This Action arises out of a claim by Plaintiff that it owns a 25% interest in title to real

property commonly known as 1106 Adee Avenue, Bronx, New York 10469 (the “Property”).

However, pursuant to a 2008 deed recorded in the land records, title to the Property is held by

Defendant Calvin D. Nesbitt (“Calvin”) and Defendant Hillerine Nesbitt (“Hillerine”)

(collectively, the “Nesbitts”). Based on the 2008 deed, Wells Fargo’s predecessor in interest

loaned the Nesbitts a principal sum of $384,685, which sum is secured by a mortgage recorded

against the Property (the “WF Mortgage”). Plaintiff seeks to cancel, among other things, the 2008

deed and WF Mortgage.

Plaintiff’s Motion is not only premature but constitutes a blatant attempt to avoid producing

discovery exclusively within the possession of Plaintiff, which is critical to Wells Fargo’s claims

and defenses. On March 23, 2021, Wells Fargo served Plaintiff and the Nesbitts with

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interrogatories and notices for discovery and inspection, all of which remain outstanding. At the

request of Plaintiff, discovery was postponed so that Plaintiff could amend the Complaint. Instead,

Plaintiff commenced a second action, filed a motion to consolidate, ignored Wells Fargo’s good

faith efforts to obtain responses to the discovery demands (which responses remain past due) and

filed this Motion. Simply put, Plaintiff filed this Motion to avoid disclosure. Plaintiff is not

entitled to summary judgment and its flagrant attempt to impede Wells Fargo’s ability to obtain

discovery warrants the imposition of sanctions.

STATEMENT OF FACTS1

A. Procedural Background.

i. This Action.

On November 19, 2020, Plaintiff commenced this Action against Defendants by filing a

summons and complaint, which asserts a cause of action to (i) cancel and discharge a 1982

Mortgage pursuant to RPAPL § 1501 (4) (“Count I”); (ii) cancel and discharge a 1989 Mortgage

pursuant to RPAPL § 1501 (4) (“Count II”); (iii) declare a 2008 deed void ab initio and cancel

said deed (“Count III”); (iv) declare a second 2008 deed void ab initio and cancel said deed

(“Count IV”); (v) cancel and discharge all encumbrances created on or after March 19, 2008

1
Pursuant to Rule 202.8-g (a) of the Uniform Rules for the Supreme Court and the County Court,
Plaintiff is required to annex to the notice of motion “a separate, short and concise statement, in
numbered paragraphs, of the material facts as to which the moving party contends there is no
genuine issue to be tried.” Plaintiff did not comply with Rule 202.8-g (a). Similarly, Plaintiff did
not comply with Rule 202.8-b (c), which requires that a Certification of Word count “shall” be
attached to every brief, memorandum, affirmation and affidavit.

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(“Count V”); and (vi) declare that Plaintiff is a 25% owner of the Property free and clear of any

encumbrance (“Count VI”).2 See Graziadei Aff., Exhibit A.

On January 21, 2021, Wells Fargo filed a Verified Answer with Affirmative Defenses,

Counterclaims and Crossclaims. See Graziadei Aff., Exhibit B, (cited herein as, “WF Answer”).

The Counterclaims seek to (i) quiet title and obtain a judgment declaring that Wells Fargo is a

bona fide encumbrancer for value and holds a valid first priority lien against the Property, nunc

pro tunc; (ii) in the alternative, establish an equitable lien pursuant to the principle of equitable

subrogation; (iii) in the alternative, obtain a judgment declaring that Wells Fargo holds a valid first

priority lien against the Nesbitts’ interest in the Property, nunc pro tunc; and (iv) in the alternative,

for the imposition of a constructive trust and equitable mortgage or monetary judgment. See

Graziadei Aff., Exhibit B. The Crossclaims seek to (i) as set forth in the fourth Counterclaim, in

the alternative, impose of a constructive trust and equitable mortgage or monetary judgment; and

(ii) obtain a monetary judgment pursuant to the principal of unjust enrichment. See Graziadei Aff.,

Exhibit B. Wells Fargo’s affirmative defenses include: (i) failure to state a cause of action; (ii)

Plaintiff’s claims are barred by documentary evidence; (iii) Plaintiff lacks standing; (iv) the statute

of limitations; (v) Wells Fargo is a bona fide encumbrance for value, (vi) Plaintiff’s claims are

barred pursuant to RPAPL § 291, (vii) Plaintiff’s claims are barred the doctrines of waiver, laches,

unclean hands and/or equitable estoppel; (viii) damages sustained by Plaintiff were caused by other

persons, not Wells Fargo; (ix) Plaintiff’s alleged damages were caused in whole or in part by

Plaintiff; (x) Plaintiff failed to mitigate its damages; (xi) Plaintiff is not a bona fide purchaser for

2
Attached as Exhibit “A” to the Affirmation of Meghan R. Graziadei, Esq. (“Graziadei Aff.,”),
dated October 19, 2021, is a true and correct copy of the Summons and Complaint filed in this
Action, cited herein as “Compl. 1, ¶ __”).
3

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value; (xii) Plaintiff had actual, constructive and/or inquiry notice of the WF Mortgage; and (xiii)

Calvin has the authority to encumber is interest in the Property. See Graziadei Aff., Exhibit B.

On February 8, 2021, the Nesbitts filed an Amended Verified Answer with Affirmative

Defenses. See Graziadei Aff., Exhibit C. On February 10, 2021, Plaintiff filed a Reply to Wells

Fargo’s Counterclaims. See Graziadei Aff., Exhibits D.

ii. Outstanding Discovery.

On March 23, 2021, Wells Fargo filed a request for a Preliminary Conference and served

Plaintiff with Interrogatories and a Notice for Discovery and Inspection, which are past due and

remain outstanding. See Graziadei Aff., Exhibits E and F. Also on March 23, 2021, Wells Fargo

served the Nesbitts with Interrogatories and a Notice for Discovery and Inspection, which remain

outstanding.3 See Graziadei Aff., Exhibit G. On September 24, 2021, the Nesbitts filed a Reply

to Crossclaims. See NYSCEF Doc. No. 60.

Thereafter, in April 2021, counsel for Wells Fargo sent counsel for Plaintiff and the

Nesbitts a proposed PC Order to be filed with the Court. See Graziadei Aff., Exhibit H. Counsel

for Plaintiff advised that Plaintiff would be amending its Complaint and requested that Wells Fargo

consent to the amendment and that the dates in the proposed PC Order be pushed back pending

the filing of an amended complaint. See Graziadei Aff., ¶ 8. Wells Fargo consented. See

Graziadei Aff., ¶ 9. However, on June 2, 2021, Plaintiff commenced a new action. See Graziadei

Aff., Exhibit I.

On August 30, 2021, Wells Fargo sent a good faith letter to Derek Medolla, Esq., counsel

for Plaintiff, regarding the outstanding discovery demands and provided counsel with another copy

3
Wells Fargo has not received disclosures from the Nesbitts, which were due on September 24,
2021, because it is the Nesbitts’ position that discovery is stayed pursuant to CPLR 3214 (b), as a
result of the filing of this Motion.
4

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of the demands per his request.4 See Graziadei Aff., Exhibit “J”. On September 15, 2021, prior

to the filing of this Motion, in a second good faith attempt, the undersigned followed up again with

Mr. Medolla via email regarding the outstanding Discovery Demands, to which Plaintiff’s counsel

did not respond and then filed this Motion. See Graziadei Aff., Exhibit J.

iii. The Second Action.

On June 2, 2021, Plaintiff commenced a second action against Defendants by filing a

summons and complaint in the Bronx County Supreme Court entitled Churchill Circle LLC v.

Calvin D. Nesbitt, et al., Index No. 807675/2021E (the “Second Action”). See Graziadei Aff.,

Exhibit F. The Second Action asserts a cause of action to (1) partition the Property; and (2) for an

accounting of rents, profits and sale proceeds. See Exhibit F.

On July 9, 2021, the Nesbitts filed a Verified Answer with Affirmative Defenses and a

Counterclaim seeking reimbursement for 25% of all expenditures disbursed in connection with the

Property and requesting that partition of the Property be done according to the respective interests

of the parties as determined by the Court. See Graziadei Aff., Exhibit “K”. On July 30, 2021,

Plaintiff filed a Reply to the Nesbitts’ Counterclaim. See Graziadei Aff., Exhibit “L”.

On August 11, 2021, Wells Fargo filed a motion to dismiss the Second Action pursuant to

CPLR § 3211 (a) (4) as this Action was already pending between the same parties for the same

cause of action. See Graziadei Aff., Exhibit “M”. The motion to dismiss has been adjourned to

November 11, 2021. See Graziadei Aff., Exhibit M..

4
On August 30, 2021, Wells Fargo also sent the Nesbitts’ counsel, Lavinia Acaru, Esq., a good
faith letter regarding the outstanding discovery demands served upon the Nesbitts. See Graziadei
Aff., Exhibit J.
5

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In response to Wells Fargo’s motion to dismiss the Second Action, Plaintiff, in this Action,

filed a motion to consolidate the actions, see NYSCEF Doc. Nos. 37-44, which remains pending,

and shortly thereafter filed this Motion. See NYSCEF Doc. Nos. 45-59.

B. Title to the Property.

In 1982, Violet Nesbitt (“Violet”) and Calvin, her son, as joint tenants with the right of

survivorship, acquired title to the Property by virtue a deed recorded in the Bronx County Clerk’s

Office on October 14, 1982, in Reel 485, at Page 1357. See WF Answer, Exhibit A. On June 14,

2004, Violet and Calvin, as joint tenants with right of survivorship, conveyed title to the Property

to Violet, Calvin, and Hillerine by deed recorded in the Office of the City Register of the City of

New York (the “Register”) on August 25, 2004, at CRFN 2004000528697. See WF Answer,

Exhibit B.

On March 19, 2008, Calvin executed a quitclaim deed conveying his interest in the

Property to himself and Hillerine, which quitclaim deed was recorded in the Register on April 24,

2008, at CRFN 2008000165912 (the “First 2008 Deed”). See WF Answer, Exhibit C. On March

25, 2008, Calvin, individually and as sole surviving heir-at-law of Violet, late of Bronx County,

along with Hillerine, his wife, conveyed the Property to Calvin and Hillerine, his wife, by deed

recorded in the Register on April 15, 2008, at CRFN 2008000150067 (the “Second 2008 Deed”).

See WF Answer, Exhibit D. On March 25, 2008, the Nesbitts executed a note in favor of Access

National Mortgage to secure a loan in the principal amount of $384,685 (the “Note”). See WF

Answer, Exhibit E. On that same day, the Nesbitts executed a mortgage in favor of Mortgage

Electronic Registration Systems, Inc., as nominee for Access National Mortgage, which mortgage

encumbers the Property to secure the Note and was recorded in the Register on April 15, 2008, at

CRFN 2008000150059 (the “WF Mortgage”). See WF Answer, Exhibit F.

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On November 11, 2011, the WF Mortgage was assigned to Wells Fargo by corporate

assignment of mortgage recorded in the Register on November 21, 2011, at CRFN

2011000404743. See WF Answer, Exhibit G. On November 18, 2015, the Nesbitts executed a

loan modification agreement increasing the principal amount of the WF Mortgage to $409,409.67,

which loan modification agreement was recorded in the Register on February 2, 2016, at CRFN

2016000036274. See WF Answer, Exhibit H.

On May 1, 2020, Brenda Clarina Holley (“Brenda”), heir-at-law of Violet, deceased,

purported to convey a 25 percent interest in the Property to Plaintiff by deed recorded in the

LEGAL ARGUMENT

“Summary judgment is a drastic remedy that deprives a litigant of [its] day in court,” and

should not be granted where there is any doubt as to the absence of triable issues. 114 Woodbury

Realty, LLC v. 10 Bethpage Rd., LLC, 178 A.D.3d 757, 759 (2d Dept. 2019) (emphasis added)

(internal quotation marks and citations omitted); accord Aguilar v. City of New York, 162 A.D.3d

601, 601 (1st Dept. 2018); see Vega v. Restani Const. Corp., 18 N.Y.3d 499, 503 (2012); Sillman

v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 (1957).

When deciding a motion for summary judgment, the role of the court is to determine

whether issues of fact exist, not resolve issues of fact. See 10 Bethpage Rd., LLC v. 114 Woodbury

Realty, LLC, 178 A.D.3d 751, 754 (2d Dept. 2019); Martin v. Briggs, 235 A.D.2d 192, 196 (1st

Dept. 1997). Motion “papers should be scrutinized carefully in the light most favorable to the

party opposing the motion,” and if the trial judge is not sure whether a triable issue of fact exists,

or can reasonably conclude that fact is arguable, the motion must be denied. Ptasznik v. Schultz,

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223 A.D.2d 695, 696 (2d Dept. 1996) (internal quotation marks omitted); see Martin v. Briggs,

235 A.D.2d at 196; Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d at 404.

The party moving “must make a prima facie showing of entitlement to judgment as a matter

of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.”

Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986); see CPLR 3212 (b); William J. Jenack

Estate Appraisers & Auctioneers, Inc. v. Rabizadeh, 22 N.Y.3d 470, 475 (2013); Winegrad v. New

York Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985). If the moving party fails to meet its burden the

court must deny summary judgment. See Alvarez v. Prospect Hosp., 68 N.Y.2d at 324; Vega v.

Restani Const. Corp., 18 N.Y.3d 499, 503 (2012). If a showing is made, the burden shifts to the

nonmoving party the establish the existence of a material issue of fact. See Alvarez v. Prospect

Hospital, 68 N.Y.2d at 324 (1986).

Moreover, a motion for summary judgment should be denied as premature for want of

discovery where the party opposing the motion has not had an adequate opportunity to conduct

discovery into issues within the knowledge of the moving party. See CPLR 3212 (f); Cordero v.

Escobar, 186 A.D.3d 1315, 1316 (2d Dept. 2020); Gomez v. Kozot Realty Corp., 142 A.D.3d 824,

825 (2d Dept. 2016); OK Petroleum Distribution Corp. v., Nassau/Suffolk Fuel Oil Corp., 17

A.D.3d 551 (2d Dept. 2005).

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD BE DENIED
BECAUSE WELLS FARGO HAS NOT HAD AN ADEQUATE OPPORTUNITY TO
CONDUCT DISCOVERY.

This Motion should be denied as premature because Wells Fargo has not had adequate

opportunity to conduct discovery into issues which are exclusively within the knowledge of

Plaintiff and the Nesbitts and which are essential to opposing this Motion.

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“A party should be afforded a reasonable opportunity to conduct discovery prior to the

determination of a motion for summary judgment.” Amico v. Melville Volunteer Fire Co., 39

A.D.3d 784, 785 (2d Dept. 2007) (citation omitted); accord Valdivia v. Consol. Resistance Co. of

Am., 54 A.D.3d 753, 755 (2d Dept. 2008); Venables v. Sagona, 46 A.D.3d 672, 673 (2d Dept.

2007). Summary judgment is a “wholly inappropriate remedy” where a party has not been afforded

an opportunity to ascertain the essential facts not within the knowledge of the non-moving party.

Lewis v. Agency Rent-A-Car, 168 A.D.2d 435, 436 (2d Dept. 1990); see CPLR 3212 (f); see e.g.

Plaza Invs. v. Kim, 208 A.D.2d 704, 704 (2d Dept. 1994). Lewis v. Agency Rent-A-Car is

instructive in this regard. 168 A.D.2d at 436.

In Lewis v. Agency Rent-A-Car, Plaintiff moved for summary judgment before any

discovery was conducted, and without complying with outstanding discovery demands, thereby

leaving “the most basic issues of fact . . . unanswered.” 168 A.D.2d at 436. The Court admonished

the plaintiff, who appealed the denial of summary judgment, by stating that “[t]he motion should

not have been made when it was, if at all, and not only was the motion properly denied but the

appeal from that denial [was] completely frivolous.” Id. Accordingly, the Second Department

directed the parties to appear before the court to determine whether the imposition of sanctions or

costs pursuant to 22 NYCRR 130–1.1 was appropriate. Id.

Likewise, here, Plaintiff has moved for summary judgment before discovery has been

conducted, and without complying with Wells Fargo’s outstanding discovery demands, thereby

leaving basic issues of fact unanswered. Further, as a result of this Motion, the Nesbitts have not

produced disclosure. As a result, Wells Fargo has not received responses to its discovery demands

served more than six months ago and has been denied the ability to conduct any discovery,

whatsoever.

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In actuality, this matter is in its infancy. And, like the plaintiff in Lewis, Plaintiff has

refused to answer interrogatories served by Wells Fargo and to produce documents requested in

the notice for inspection and discovery. Wells Fargo is certainly entitled to this outstanding

discovery, and any additional discovery it may deem to be necessary, for purposes of its

counterclaims and defenses. For instance, this entire case is premised upon Plaintiff’s claim that

Brenda is Violet’s heir and that she acquired a 25% interest in the Property upon Violet’s death,

but Wells Fargo has been denied the ability to explore in discovery the veracity of that claim. Nor

has Plaintiff provided any evidence in support of its motion regarding the veracity of that claim.

Wells Fargo has also been denied the ability to explore in discovery, for purposes of its defense of

laches and equitable estoppel, when and how Brenda and Plaintiff learned about the Property

transfer and WF Mortgage. Wells Fargo is also entitled to know about the circumstances

surrounding the Property transfer, any conversations and/or agreements Brenda and the Nesbitts

had regarding the transfer of the Property, conversations between Brenda and the Nesbitts

regarding the 2007 Mortgage, which was satisfied via funds from the WF Mortgage, and

conversations between Brenda and the Nesbitts regarding the WF Mortgage. Wells Fargo is also

entitled to know the circumstances surrounding the Property transfer from Brenda to Plaintiff and

any conversations regarding the transfer or prior transfers and the WF Mortgage. Wells Fargo is

assuredly entitled to depose Plaintiff and the Nesbitts and to conduct third party discovery on

Brenda and any other third party it deems necessary for purposes of its counterclaims and defenses.

Discovery surrounding these issues is sought via the outstanding discovery demands.

On August 30, 2021, Wells Fargo sent a good faith letter to Derek Medolla, Esq., counsel

for Plaintiff, and provided counsel with another copy of the demands per his request. See Graziadei

Aff., Exhibit J. On September 15, 2021, prior to the filing of this Motion, counsel followed up

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again with Plaintiff’s counsel via email regarding the outstanding Discovery Demands, to which

Plaintiff’s counsel did not respond and then filed this Motion. See Graziadei Aff., Exhibit J.

Indeed, Plaintiff is effectively attempting to usurp the entire discovery process by

requesting that this Court enter judgment in its favor exclusively upon its self-serving, disputed

and effectively unsworn factual allegations. Under the clearly established law in New York,

Plaintiff’s Motion must be denied. See e.g. Malester v. Rampil, 118 A.D.3d 855, 856 (2d Dept.

2014) (affirming the trial court’s denial of summary judgment as premature where no discovery

had been conducted); Brophy v. Metro. Life Ins. Co., 278 A.D.2d 351, 352 (2d Dept. 2000)

(affirming the trial court’s denial of summary judgment because the moving party failed to comply

with discovery); Chmelovsky v. Country Club Homes, Inc., 106 A.D.3d 684 (2d Dept. 2013)

(affirming the trial court’s denial of summary judgment as premature where no discovery had taken

place); Lewis v. Agency Rent-A-Car, 168 A.D.2d at 436; Mortgage Elec. Registration Systems,

Inc. v. Bank, 4 Misc. 3d 1030(A) (Richmond Cty. Sup. Ct. June 7, 2004) (condemning the moving

party for ignoring discovery demands for five months and moving for summary judgment).

II.

THE DOCUMENTARY EVIDENCE AND DISPUTED ISSUES OF MATERIAL FACT
ALSO PRECLUDE SUMMARY JUDGMENT

The only evidence Plaintiff submits in support of its motion for summary judgment is the

unverified, unsworn allegations set forth in the Complaint, a self-serving affidavit of Andrew

Wenzel “a member and authorized signatory for [P]laintiff,” and an attorney affirmation which

Case Info

Judge

Mary Lynn Dlabola Track Judge’s New Case

Case No.

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Document Filed Date

October 19, 2021

Case Filing Date

November 19, 2020

County

Parties

Calvin D. Nesbitt Defendant
CAVAYERO, HARVEY J Attorney for the Defendant
Churchill Circle LLC Plaintiff
Community National Bank Defendant
Hillerine Nesbitt Defendant
Key Bank of New York, N.A. SBM to Key Bank of Western New York, NA Defendant
MEDOLLA, DEREK Attorney for the Plaintiff
MONAHAN, SEAN KEVIN Attorney for the Plaintiff
New York City Environmental Control Board Defendant
RAPPAPORT, JUSTIN LOGAN Attorney for the Plaintiff
RESNIKOFF, MICHAEL HUNTER Attorney for the Plaintiff
ROTH, GERALD C Attorney for the Defendant
Secretary of Housing and Urban Development Defendant
SFERLAZZA, MICHAEL CRAIG Attorney for the Defendant
TORDESILLAS, BERNARD JAMES Attorney for the Defendant
Wells Fargo Bank, N.A. Defendant
MEGHAN GRAZIADEI Attorneys for Defendants
GARY RAPPAPORT Attorney
LAVINIA ACARU Attorneys for Defendants
HARVEY JACOBS Attorney
EDWARD WIENER Attorneys for Defendants

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Motion-Secondary: Churchill Circle Llc v. Calvin D. Nesbitt, Hillerine Nesbitt, Wells Fargo Bank, N.A., Secretary Of Housing And Urban Development, Key Bank Of New York, N.A. Sbm To Key Bank Of Western New York, Na, Community National Bank, New York City Environmental Control Board

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