| Novick v DeRosa |
| 2008 NY Slip Op 04666 [51 AD3d 885] |
| May 20, 2008 |
| Appellate Division, Second Department |
| Donna R. Novick, Appellant, v Frank J. DeRosa,Respondent. |
—[*1] Law Offices of Stanley E. Orzechowski, P.C., Smithtown, N.Y., for respondent.
In an action, inter alia, to recover damages for civil rights violations pursuant to 42 USC§ 1983, the plaintiff appeals, as limited by her brief, from so much of an order of theSupreme Court, Suffolk County (Baisley, J.), dated July 10, 2006, as granted that branch of thedefendant's motion which was to strike and dismiss the complaint pursuant to CPLR 3126 for herfailure to comply with discovery requests.
Ordered that the order is affirmed insofar as appealed from, with costs.
The nature and degree of the sanction to be imposed on a motion pursuant to CPLR 3126 is amatter of discretion with the motion court (see Martin v City of New York, 46 AD3d 635 [2007]; Bomzer v Parke-Davis, Div. of WarnerLambert Co., 41 AD3d 522 [2007]). The drastic remedy of striking a pleading pursuantto CPLR 3126 (3) for failure to comply with court-ordered disclosure should be granted onlywhere the conduct of the resisting party is shown to be willful and contumacious (see Martin v City of New York, 46AD3d 635, 636 [2007]; Bomzer vParke-Davis, Div. of Warner Lambert Co., 41 AD3d 522 [2007]; cf. Harris v City ofNew York, 211 AD2d 663, 664 [1995]).
Here, the plaintiff's willful and contumacious conduct can be inferred from her failure, overan extended period of time, to provide substantive and complete responses to the defendant'srequests for discovery and inspection, to comply with court orders directing such disclosure, andthe absence of any reasonable excuse for these failures (see Martin v City of New York, 46 AD3d 635, 636 [2007]; Maiorino v City of New York, 39AD3d 601 [2007]). Accordingly, the Supreme Court providently [*2]exercised its discretion in granting that branch of the defendant'smotion which was to strike and dismiss the complaint. Florio, J.P., Miller, Dillon and McCarthy,JJ., concur.