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

Wells Fargo, N.A. v Marielle Textile, Inc. 2007 NY Slip Op 02797 [39 AD3d 210] April 3, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 6, 2007

Wells Fargo, N.A., Appellant,
v
Marielle Textile, Inc., Defendant, and Donald Gelber, Respondent.

—[*1] Silverman Sclar Shin & Byrne PLLC, New York (Neil P. Fenton of counsel), for appellant.

Abrams, Fensterman, Fensterman, Flowers, Greenberg & Eisman, LLP, Lake Success (Keith J. Singer of counsel), for respondent.

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.P., Friedman, Nardelli, Williams and Malone, JJ.