| Lomax v Rochdale Vil., Inc. |
| 2010 NY Slip Op 06621 [76 AD3d 999] |
| September 21, 2010 |
| Appellate Division, Second Department |
| Renita Lomax, Respondent, v Rochdale Village, Inc., et al.,Appellants. |
—[*1] Sullivan & Brill, LLP, New York, N.Y. (Joseph F. Sullivan and Tara Ganguly of counsel),for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Queens County (Hart, J.), dated January 8, 2010, which granted the plaintiff'smotion pursuant to CPLR 3126 to strike the answer for failure to comply with discoverydemands.
Ordered that the order is reversed, on the law and in the exercise of discretion, with costs,and the plaintiff's motion is denied.
Pursuant to CPLR 3126, "[a] court may strike an answer as a sanction if a defendant 'refusesto obey an order for disclosure or wilfully fails to disclose information which the court findsought to have been disclosed' " (Mazzav Seneca, 72 AD3d 754, 754 [2010], quoting CPLR 3126). While the nature and degreeof the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the trialcourt (see CPLR 3126 [3]; Kihl v Pfeffer, 94 NY2d 118, 122-123 [1999]; Bernal v Singh, 72 AD3d 716, 717[2010]), the drastic remedy of striking a pleading is not appropriate absent a clear showing thatthe failure to comply with discovery demands is willful or contumacious (see CPLR 3126[3]; Moray v City of Yonkers, 76AD3d 618 [2010]).
Here, there was no clear showing that the defendants' conduct was willful or contumacious(see Dank v Sears Holding Mgt.Corp., 69 AD3d 557 [2010]). Rather, the defendants substantially complied with theirdiscovery obligations and, where demanded documents could not be found, the defendantsprovided affidavits showing that good faith efforts had been made to locate the documents (see Argo v Queens Surface Corp., 58AD3d 656, 656-657 [2009]; Maffaiv County of Suffolk, 36 AD3d 765, 766 [2007]; Sagiv v Gamache, 26 AD3d 368, 369 [2006]). Accordingly, it wasan improvident exercise of discretion to strike the answer. Rivera, J.P., Covello, Eng, Leventhaland Austin, JJ., concur.