Wilmington Sav. Fund Socy., FSB v. Donaldson

2022 NY Slip Op 03465

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 26, 2022
• Docket: Index No. 326326/16E Appeal No. 16018 Case No. 2021-03873
• Status: Published

Opinion

Wilmington Sav. Fund Socy., FSB v Donaldson (2022 NY Slip Op 03465)

Wilmington Sav. Fund Socy., FSB v Donaldson

2022 NY Slip Op 03465

Decided on May 26, 2022

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: May 26, 2022
Before: Manzanet-Daniels, J.P., Kapnick, Shulman, Rodriguez, Pitt, JJ.

Index No. 326326/16E Appeal No. 16018 Case No. 2021-03873

[*1]Wilmington Savings Fund Society, FSB, etc., Plaintiff-Appellant,

v

Ricardo Donaldson, Also Known as Ricardo E. Donaldson, et al., Defendants, Ruby Perez, Defendant-Respondent.

Stern & Eisenberg, P.C., Lagrangeville (Arsenio Rodriguez of counsel), for appellant.

Rajesh Barua PLLC, New York (Rajesh Barua of counsel), for respondent.

Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered May 13, 2021, which granted defendant Ruby Perez's motion pursuant to CPLR 3126 to dismiss the complaint as against her, unanimously affirmed, without costs.

By virtue of the issuance of a conditional order of dismissal, the motion court was "relieve[d] . . . of the unrewarding inquiry into whether plaintiff's resistance [to complying with discovery] was willful" (Mehler v Jones, 181 AD3d 535, 535 [1st Dept 2020] [internal quotation marks and brackets omitted]). Plaintiff failed to demonstrate a reasonable excuse for its failure to comply with the conditional order (see id. at 536). Contrary to plaintiff's contention, the court considered its objections to discovery demands and found them inadequate in light of the obvious relevance of the discovery demands related to the existence of two inconsistent documents concerning the assignment of the mortgage. Further, plaintiff had not provided an affidavit concerning its search for documents and had not produced a witness for deposition. THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: May 26, 2022