Wells Fargo, N.A. v. Marielle Textile, Inc.

Order and judgment (one paper), Supreme Court, New York County (Emily Jane Goodman, J.), entered May 18, 2005, which, after a nonjury trial, dismissed the complaint, unanimously affirmed, without costs. Although we find, contrary to the trial court, that a proper foundation was laid for the admission of a microfiche copy of the loan application at issue (see Briar Hill Apts. Co. v Teperman, 165 AD2d 519, 521-522 [1991]; Berrios v Lumbermens Mut. Cas. Co., 162 AD2d 365 [1990]), we affirm the dismissal of the complaint based on the trial court’s finding of fact that the document sued upon is illegible, necessarily meaning that plaintiff failed to make out a prima facie case. The trial court did not abuse its discretion in denying plaintiff a continuance to secure another witness, since, under the circumstances, the proposed testimony would have been immaterial (see Armetta v General Motors Corp., 158 AD2d 284, 286 [1990]). Concur— Mazzarelli, J.E, Friedman, Nardelli, Williams and Malone, JJ.