In a heavily litigated foreclosure action that has had multiple motions and appeals, the borrower appealed from a decision of the Court that denied her motion to dismiss Plaintiff’s complaint pursuant to CPLR § 3126(c).

The borrower argued that Plaintiff failed to comply with her discovery demands and dismissal of the complaint was warranted. Plaintiff opposed borrower’s application and cross-moved for a protective order, contending that the demands were wholly immaterial to the issues of the case.

The Supreme Court denied the borrower’s motion, holding, among other things, that borrower did not comply with 22 NYCRR 202.20-f.

On appeal, borrower argued that the Supreme Court committed reversible error because borrower acted in good faith to obtain the discovery and thus the Supreme Court should not have denied her motion.

In opposition, ALBPC argued that borrower’s failed to include a “good faith” affirmation in support of her motion and for that reason alone denial was warranted. Moreover, even if borrower included a good faith affirmation, the Supreme Court properly exercised its discretion in denying borrower’s motion because there was no willful or contumacious conduct by Plaintiff.

The Second Department fully agreed with ALBPC and upheld the Supreme Court’s decision. The Second Department held that the Supreme Court properly denied the motion based on borrower’s failure to comply with the requirements of “22 NYCRR 202.7 and 202.20-f(b)” and that borrower’s motion’s was “wholly inadequate to warrant the extreme discovery sanction of striking the complaint.”

Jeffrey R. Metz, Esq. of the Appellate Practice Group, Jackie Halpern Weinstein, Esq. and Danny Ramrattan, Esq. of the Foreclosure Litigation Group at Adam Leitman Bailey, P.C. secured this result for its client.