Opinion
No. 16018 Index No. 326326/16E Case No. 2021-03873
05-26-2022
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.
Stern & Eisenberg, P.C., Lagrangeville (Arsenio Rodriguez of counsel), for appellant.
Rajesh Barua PLLC, New York (Rajesh Barua of counsel), for respondent.
Before: Manzanet-Daniels, J.P., Kapnick, Shulman, Rodriguez, Pitt, JJ.
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 A.D.3d 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.