U.S. Bank N.A. v Ventura

2015 NY Slip Op 06237 [130 AD3d 919]

July 22, 2015

Appellate Division, Second Department

As corrected through Wednesday, September 2, 2015

[*1]

U.S. Bank National Association,Appellant, v Jose B. Ventura et al., Respondents, et al.,Defendants.

Eckert Seamans Cherin & Mellott, LLC, White Plains, N.Y. (Steven R. Kramerand Candace E. Chun of counsel), for appellant.

Amato Law Group, PLLC, Garden City, N.Y. (Christopher M. Read and Keith W.Corso of counsel), for respondents.

In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, fromso much of an order of the Supreme Court, Nassau County (Adams, J.), enteredSeptember 11, 2013, as granted that branch of the motion of the defendants Jose B.Ventura and Irma L. Ventura which was pursuant to CPLR 3124 to compel it to producea certain witness for deposition.

Ordered that the order is affirmed insofar as appealed from, with costs.

CPLR 3101 provides that "[t]here shall be full disclosure of all matter material andnecessary in the prosecution or defense of an action, regardless of the burden of proof, by. . . a party, or the officer, director, member, agent or employee of a party"(CPLR 3101 [a] [1]). Pursuant to CPLR 3124, "[i]f a person fails to respond to orcomply with any request, notice, interrogatory, demand, question or order. . . the party seeking disclosure may move to compel compliance or aresponse."

The moving defendants satisfied the threshold requirement of demonstrating that thedisclosure sought is "material and necessary" to their affirmative defense alleging that theplaintiff lacked standing to commence this action. In addition, those defendantsdemonstrated that the witness they sought to depose was an employee of Select PortfolioServices, Inc., the plaintiff's agent and attorney-in-fact (see CPLR 3101 [a] [1];United States Fire Ins. Co. v Rockland Fire Equip. Co., 227 AD2d 289[1996]).

Contrary to the plaintiff's contention, the moving defendants were not required toserve a subpoena upon the witness (cf. CPLR 3106 [b]). Skelos, J.P., Hall, Austinand Sgroi, JJ., concur.