| McArthur v New York City Hous. Auth. |
| 2008 NY Slip Op 01121 [48 AD3d 431] |
| February 5, 2008 |
| Appellate Division, Second Department |
| Felicia McArthur, Appellant, v New York City HousingAuthority, Respondent. |
—[*1] Cullen and Dykman, LLP, Brooklyn, N.Y. (Joseph Miller of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Agate, J.), dated November 22, 2006, which granted thedefendant's motion to dismiss the complaint pursuant to CPLR 3126 on the ground that she failedto comply with court-ordered disclosure.
Ordered that the order is affirmed, with costs.
The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within thesound discretion of the trial court (see Kihl v Pfeffer, 94 NY2d 118, 122-123 [1999]; Rowell v Joyce, 10 AD3d 601[2004]; My Carpet, Inc. v Bruce SupplyCorp., 8 AD3d 248 [2004]). The striking of a pleading may be appropriate where thereis a clear showing that the failure to comply with discovery demands is willful and contumacious(see Town of Southampton v Salten, 186 AD2d 796 [1992]). The willful andcontumacious character of a party's conduct can be inferred from the party's repeated failure torespond to demands and/or to comply with discovery orders (see Horne v Swimquip, Inc., 36 AD3d 859 [2007]; Sowerby v Camarda, 20 AD3d411 [2005]; Bodine v Ladjevardi, 284 AD2d 351, 352 [2001]). Contrary to theplaintiff's contentions, the willful and contumacious character of the conduct could be properlyinferred by the court from her repeated failures to comply with the court's discovery orders toappear for a deposition and an independent medical examination and to provide certaindisclosure, including authorizations to obtain information and medical and employment records,without an adequate excuse (seeWoolard v Suffolk County Water Auth., 16 AD3d 582 [2005]; Rowell v Joyce,[*2]10 AD3d 601 [2004]; Alto v Gilman Mgt. Corp., 7 AD3d 650, 650-651 [2004];Russell v B&B Indus., 309 AD2d 914 [2003]; Gomez v Gateway Demolition Corp.,293 AD2d 649 [2002]; Abouzeid v Cadogan, 291 AD2d 423 [2002]). Mastro, J.P.,Santucci, Dillon and Angiolillo, JJ., concur.