I. Statement Pursuant to CPLR § 2219 [a]

Pursuant to CPLR § 2219 [a], the Court states that the following papers were considered on the motion by Order to Show Cause of Defendant Adam Plotch, seeking to preclude the testimony of Kyra Schwartz and to preclude Plaintiff's Exhibits 1, 2, 3, 7.3, and 9 from admission at trial: the Order to Show Cause with supporting affirmation of Justin F. Pane, Esq., dated August 11, 2025, with exhibits; the Affirmation in Opposition of Yimell M. Suarez Abreu, Esq., dated August 12, 2025, with exhibits; the Affirmations of Service filed August 11, 2025 and August 12, 2025; and all prior pleadings and proceedings in this action

Defendant Adam Plotch moves to (i) preclude the trial testimony of Kyra Schwartz and (ii) preclude the admission of certain documents identified on Plaintiff's exhibit list. Plaintiff Wells Fargo Bank, N.A. opposes. The motion is DENIED for the reasons that follow.

II. Procedural Posture

Plaintiff's opposition is presented by the Attorney Affirmation of Yimell M. Suarez Abreu, Esq., made under CPLR 2106. An accompanying affirmation of service reflects [*2]NYSCEF service of the opposition on August 12, 2025. Defendant's Order to Show Cause seeks, inter alia, to bar Ms. Schwartz's testimony based on purported violations of a July 14, 2025 pre-trial order and on alleged discovery deficiencies dating to 2019. Plaintiff counters that the Court expressly permitted Ms. Schwartz's testimony during colloquy on July 14, 2025, set the August 18, 2025 trial date to accommodate her, and authorized remote testimony.

As to exhibits, the Order to Show Cause targets five items (Plaintiff's Exhibits 1, 2, 3, 7.3, and 9) on the premise that they were not produced in response to a request concerning "delivery of physical possession" of the notes to Plaintiff. Plaintiff answers that none of the challenged exhibits concern original delivery or acquisition; rather, Exhibits 1—3 and 9 memorialize collateral-file transmittals between Plaintiff and prior foreclosure counsel around the commencement of this action and thereafter, and Exhibit 7.3 concerns pre-foreclosure mailings to the borrowers. Plaintiff further represents that all five exhibits were previously e-filed in connection with prior summary-judgment motions (NY St Cts Filing [NYSCEF] Doc Nos. 315; 395; 316, 396; 397; 309; 312).

III. Findings of Fact

The court makes the following Findings of Fact in connection with the papers submitted on the motion:

1. Witness at Issue. Ms. Schwartz is not Plaintiff's employee; she is employed by Plaintiff's former foreclosure counsel, Frankel Lambert Weiss & Gordon LLP. Her anticipated testimony concerns the status of the allonge to the consolidated note, specifically, whether the allonge was "firmly affixed" at the time of commencement, based upon the corporate business records of former counsel.

2. Pre-Trial Proceedings. Plaintiff avers that, on July 14, 2025, after issuance of an order precluding certain intended witnesses but before entry of a written Pre-Trial Order, the Court advised Defendant's then-counsel that Ms. Schwartz would not be precluded, and the Court fixed August 18, 2025 for trial to align with Ms. Schwartz's availability, permitting remote testimony. Plaintiff notes the court reporter's transcript has been requested and is expected after August 25, 2025.

3. Discovery History Invoked by the Order to Show Cause. Defendant relies on 2019 interrogatories that sought, among other things, identification of persons: (i) responsible for maintaining payment records; (ii) with knowledge concerning physical delivery of the original notes to Plaintiff; and (iii) with knowledge concerning assignment of the notes. Plaintiff responds that Ms. Schwartz has no personal knowledge of payments, delivery, or assignment and therefore would not have been identified in response to those interrogatories.

4. Challenged Exhibits. Plaintiff asserts the five challenged exhibits do not address original delivery or assignment; Exhibits 1—3 and 9 reflect collateral-file transfers between Plaintiff and its former counsel proximate to and following commencement, while Exhibit 7.3 concerns later pre-foreclosure mailings. Plaintiff also represents that each was already filed on NYSCEF in prior motion practice.

IV. Conclusions of Law

A. The Request to Preclude Ms. Schwartz's Testimony

Preclusion is not warranted. Defendant's predicate is that Ms. Schwartz was omitted from 2019 interrogatory responses. But those interrogatories, by Defendant's own framing, sought custodians or witnesses regarding (a) payment records, (b) physical delivery of the original notes to Plaintiff, and (c) assignment of the notes. Plaintiff's unrefuted description of Ms. Schwartz's role is that she is a corporate representative of prior counsel whose testimony concerns the physical affixation of the allonge and the law firm's business records, not payments, delivery to Plaintiff, or assignment. On that alignment, the omission of Ms. Schwartz from responses tailored to different subject-matters does not justify the drastic remedy of preclusion on this motion record.

Further, the record reflects that the Court previously addressed Ms. Schwartz's status in open court and, as represented by Plaintiff, stated she would not be precluded, selected the trial date to suit her availability, and allowed remote testimony. While the official transcript is forthcoming, Defendant offers no contrary documentary showing in these motion papers. On this posture, and on the submissions before the Court alone, the request to bar Ms. Schwartz's testimony is denied.

B. The Request to Preclude Plaintiff's Exhibits 1, 2, 3, 7.3, and 9

Defendant's basis for preclusion is a discovery demand narrowly directed to documents "describing, referring or relating to the delivery of physical possession of the note(s) . . . to Plaintiff." Plaintiff shows, again without evidentiary rebuttal on this motion, that the challenged exhibits do not concern original delivery or acquisition, but instead collateral-file transfers between Plaintiff and prior counsel (Exhibits 1—3, 9) and later pre-foreclosure mailings (Exhibit 7.3). That description places the exhibits facially outside the narrow demand invoked by Defendant. Plaintiff also demonstrates that all five items were previously e-filed during summary-judgment practice, which defeats the suggestion of trial-by-ambush.

On this record, Defendant has not identified a discovery request to which the exhibits were responsive but withheld, nor any cognizable prejudice arising from their use at trial. The request to preclude them is therefore denied.

IV. Conclusion and Decretal Paragraphs

Accordingly, it is

ORDERED that Defendant Adam Plotch's Order to Show Cause seeking to preclude the testimony of Kyra Schwartz and to preclude Plaintiff's Exhibits 1, 2, 3, 7.3, and 9 is DENIED in its entirety; and it is further

ORDERED that, consistent with the Court's prior directions as reflected in the motion submissions, Ms. Schwartz may testify at the scheduled trial date and may do so remotely.

This constitutes the Decision and Order of the Court.