LEWIS v. Caliber Home Loans, Inc., etc., nonparty-respondent. (2024)

DECISION & ORDER

In an action, inter alia, pursuant to Real Property Law § 329 to cancel of record two assignments of mortgage, the plaintiff appeals from an order of the Supreme Court, Westchester County (Joan B. Lefkowitz, J.), dated January 6, 2023.  The order, insofar as appealed from, denied the plaintiff's motion to compel discovery.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff, as the record owner of certain real property, commenced this action, inter alia, pursuant to Real Property Law § 329 to cancel of record two assignments of mortgage that were recorded against the property, alleging that the person who executed the two assignments of mortgage lacked the authority to do so.  Caliber Home Loans, Inc. (hereinafter Caliber), interposed an answer to the complaint as successor in interest to the defendant CIT Group/Consumer Finance, Inc. In November 2015, the plaintiff served Caliber with discovery demands.  Caliber served responses with objections.

Following several years of motion practice and appeals (see Lewis v. Bartow, 200 A.D.3d 971, 972, 159 N.Y.S.3d 118;  Lewis v. Bartow, 174 A.D.3d 590, 591, 101 N.Y.S.3d 895), as well as several compliance conferences, the plaintiff moved to compel Caliber to further respond to the plaintiff's discovery demands.  The Supreme Court denied the plaintiff's motion.  The plaintiff appeals.

The Supreme Court properly denied the plaintiff's motion to compel discovery on the ground that the plaintiff failed to submit an affirmation of good faith pursuant to 22 NYCRR 202.7(a)(2) detailing communications between the parties evincing a diligent effort to resolve the dispute or indicating good cause why no such communications occurred (see id. § 202.7[c];  Behar v. Wiblishauser, 219 A.D.3d 793, 793, 195 N.Y.S.3d 249;  Winter v. ESRT Empire State Bldg., LLC, 201 A.D.3d 842, 844, 161 N.Y.S.3d 314;  Matter of Greenfield v. Board of Assessment Review for Town of Babylon, 106 A.D.3d 908, 908, 965 N.Y.S.2d 555).

Moreover, “[a] motion to compel responses to demands and interrogatories is properly denied where the demands and interrogatories seek information which is irrelevant, overly broad, or burdensome” (Accent Collections, Inc. v. Cappelli Enters., Inc., 84 A.D.3d 1283, 1283, 924 N.Y.S.2d 545;  see JPMorgan Chase Bank, N.A. v. Levenson, 149 A.D.3d 1053, 1053, 53 N.Y.S.3d 150;  Matter of Greenfield v. Board of Assessment Review for Town of Babylon, 106 A.D.3d at 908, 965 N.Y.S.2d 555).  Here, Caliber adequately responded to the plaintiff's demands that were properly made.  As for the plaintiff's specific contention that Caliber failed to respond to his demands seeking evidence regarding the legal authority of the person who executed the two assignments of mortgage, the plaintiff did not seek discovery on that issue.  In any event, in response to the plaintiff's motion to compel, Caliber produced a document responsive to the plaintiff's purported request.

Accordingly, the plaintiff's motion to compel discovery was properly denied.

The plaintiff's remaining contentions are either without merit or not properly before this Court.

CONNOLLY, J.P., BRATHWAITE NELSON, CHRISTOPHER and TAYLOR, JJ., concur.