122-24 Lexington Ave. Corp. v. Wesco Ins. Co.

122-24 Lexington Ave. Corp. v Wesco Ins. Co. (2021 NY Slip Op 05918) 122-24 Lexington Ave. Corp. v Wesco Ins. Co. 2021 NY Slip Op 05918 Decided on October 28, 2021 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: October 28, 2021 Before: Renwick, J.P., González, Kennedy, Scarpulla, Rodriguez, JJ. Index No. 655955/18 Appeal No. 14509 Case No. 2021-02226 [*1]122-24 Lexington Avenue Corp., etc., Plaintiff-Appellant, v Wesco Insurance Company, etc., Defendant-Respondent. Denenberg Law Firm, New York (Deborah J. Denenberg of counsel), for appellant. Mound Cotton Wollan & Greengrass LLP, New York (Kevin F. Buckley of counsel), for respondent. Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered on or about May 21, 2021, which denied plaintiff's motion to vacate an order that dismissed the complaint pursuant to CPLR 3126 and 22 NYCRR 202.27, unanimously affirmed, with costs. Plaintiff failed to proffer a reasonable excuse for its continuing and repeated failure to comply with discovery orders (see Biton v Turco, 88 AD3d 519 [1st Dept 2011], lv dismissed 30 NY3d 1081 [2018]), despite multiple court orders and requests from defendant's counsel to provide discovery (see Goldstein v CIBC World Mkts. Corp., 30 AD3d 217 [1st Dept 2006]). Contrary to its contention, plaintiff did not substantially comply with outstanding discovery, since it did not complete depositions or file a note of issue by the deadlines in the last compliance order. Absent a reasonable excuse, we need not evaluate the merits of plaintiff's claim (see Biton, 88 AD3d 519). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: October 28, 2021