                             State of New York
                      Supreme Court, Appellate Division
                         Third Judicial Department
Decided and Entered: January 29, 2015                      518631
________________________________

WILLIAM CRAWFORD,
                       Respondent,
         v                                     MEMORANDUM AND ORDER

JENNIFER L. BURKEY,
                    Appellant.
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Calendar Date:      November 12, 2014

Before:      Peters, P.J., Lahtinen, Garry, Rose and Lynch, JJ.

                                __________


         Robert M. Winn, Granville, for appellant.

      Fitzgerald Morris Baker & Firth, PC, Glens Falls (William
A. Scott of counsel), for respondent.

                                __________


Rose, J.

      Appeal from an order of the Supreme Court (Clark, J.),
entered December 19, 2013 in Washington County, which denied
defendant's motion to strike plaintiff's complaint.

      Plaintiff commenced this action to recover for
contributions he allegedly made to the improvement of a residence
that is titled in defendant's name.1 Following plaintiff's
failure to comply with an order compelling him to disclose his
tax returns for the years 2002 through 2009, Supreme Court issued
a conditional order requiring him to produce the tax returns
within 60 days or his complaint would be stricken. Plaintiff


     1
        The facts are more fully set forth in our prior decision
in this action (93 AD3d 1134 [2012]).
                              -2-                  518631

timely responded to the demand with copies of his returns for
2002 through 2008, but he did not produce a tax return for 2009.
Defendant moved to strike the complaint, and plaintiff opposed
the motion with an affidavit attesting that he did not produce
returns for 2009 because he failed to file them that year.
Holding that plaintiff was not required to produce documents that
do not exist, Supreme Court denied the motion. Defendant
appeals.

      To avoid the consequences of the conditional order,
plaintiff was required to provide a reasonable excuse for the
failure to comply and an affidavit of merit (see Gibbs v St.
Barnabas Hosp., 16 NY3d 74, 80 [2010]; Willis v Keeler Motor Car
Co., 121 AD3d 1373, 1374 [2014]; Cochran v Cayuga Med. Ctr. At
Ithaca, 90 AD3d 1227, 1227 [2011]). Here, plaintiff satisfied
the reasonable excuse requirement, inasmuch as "a party cannot be
compelled to produce documents that do not exist" (Mary Imogene
Bassett Hosp. v Cannon Design, Inc., 97 AD3d 1030, 1032 [2012]).
Further, despite defendant's contention that plaintiff cannot
demonstrate potential merit because the minimal income reported
in the tax returns provided was not adequate to support his
allegation in the complaint that he contributed $70,000 to the
improvement of the residence, plaintiff established that his
claim is based, at least in part, on labor and material that he
contributed to the residence. Accordingly, we decline to disturb
Supreme Court's exercise of its discretion in denying the motion
to strike the complaint. Defendant's remaining contentions have
been considered and found to be unavailing.

     Peters, P.J., Lahtinen, Garry and Lynch, JJ., concur.


     ORDERED that the order is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
