                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 16, 2016                     521651
________________________________

CITIBANK, N.A., as Trustee
   for the Registered Holders
   of Bear Stearns Asset-
   Backed Securities I Trust
   2005-CL 1, Asset-Backed
   Certificates, Series
   2005-CL1,                                MEMORANDUM AND ORDER
                    Appellant,
      v

DAVID CULLEN BRAVO, Also Known
   as DAVID S. BRAVO CULLEN,
   et al.,
                    Respondents,
                    et al.,
                    Defendants.
________________________________


Calendar Date:   April 25, 2016

Before:   Lahtinen, J.P., Rose, Lynch, Clark and Aarons, JJ.

                             __________


      Blank Rome LLP, New York City (Jonathan M. Robbin of
counsel), for appellant.

      The Crossmore Law Office, Ithaca (Edward Y. Crossmore of
counsel), for respondents.

                             __________


Lahtinen, J.P.

      Appeal from an order of the Supreme Court (Mulvey, J.),
entered December 2, 2014 in Tompkins County, which granted a
motion by defendants David Cullen Bravo and Christine Bravo
Cullen to preclude plaintiff from offering proof of indebtedness.
                              -2-                521651

      In June 2013, plaintiff commenced this foreclosure action
on residential real property – mortgaged in January 2008 for
about $82,600 – owned by defendants David Cullen Bravo and
Christine Bravo Cullen (hereinafter collectively referred to as
defendants) in the Town of Dryden, Tompkins County. Defendants
answered asserting, among other things, that plaintiff was not
the holder of the note. After a series of delays resulting
primarily from conduct by plaintiff and its attorneys which
prompted two preclusion motions by defendants, Supreme Court
granted the second preclusion motion in December 2014. The court
precluded plaintiff from offering proof of indebtedness as
alleged in the complaint. Plaintiff appeals.

      "Where a trial court determines that a party has failed to
comply with its discovery obligations, it has broad discretion to
remedy the violation" (BDS Copy Inks, Inc. v International Paper,
123 AD3d 1255, 1256 [2014]). "Despite a general policy favoring
resolution of disputes on the merits, this Court will not disturb
a trial court's choice of remedy absent a clear abuse of
discretion" (Doherty v Schuyler Hills, Inc., 55 AD3d 1174, 1176
[2008] [citation omitted]). A pattern of noncompliance and delay
can give rise to an inference of willfulness (see Hameroff &
Sons, LLC v Plank, LLC, 108 AD3d 908, 909 [2013]; Hesse Constr.,
LLC v Fisher, 61 AD3d 1143, 1144 [2009]; Robinson Saw Mill Works
v Speilman, 265 AD2d 604, 606 [1999]). Here, among other things,
plaintiff refused to appear for a deposition, canceled
depositions at the last minute, missed a CPLR 3408 court-ordered
mandatory conference, failed to comply with a court-ordered
deposition deadline, and created confusion and delay with an
inadequate and unclear effort to substitute counsel. With
respect to plaintiff's contention that it had the right as a
corporation to determine who it would initially produce for a
deposition, we note that defendants specifically named in their
May 2014 demand the person who had executed an affidavit
regarding the note and plaintiff failed to comply with the
statutory requirement to, "no later than [10] days prior to the
scheduled deposition, notif[y] [defendants] that another
individual would instead be produced and the identity,
description or title of such individual" (CPLR 3106 [d]; see
Hendrick Hudson Cent. School Dist. v Falinski, 232 AD2d 454, 455
[1996]; Weinstein-Korn-Miller, NY Civ Prac ¶ 3106.17 [2d ed
                              -3-                  521651

2014]; cf. Barnwell v Emigrant Sav. Bank, 81 AD3d 518, 518
[2011]). Instead of giving timely notice to defendants, seeking
a protective order or even producing a person it deemed
knowledgeable (cf. E & M Adv. West/Camelot Media, Inc. v Vertical
Lend, Inc., 45 AD3d 502, 502 [2007]), plaintiff simply refused to
produce the named individual resulting in the failure to comply
with the court-ordered date for conducting the deposition. Under
the entirety of the circumstances, we are unpersuaded that
Supreme Court improvidently exercised its discretion.

     Rose, Lynch, Clark and Aarons, JJ., concur.



     ORDERED that the order is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
