| Daniels v City of New York |
| 2010 NY Slip Op 08527 [78 AD3d 883] |
| November 16, 2010 |
| Appellate Division, Second Department |
| Darren Daniels, Respondent, v City of New York et al.,Defendants, and Keyspan Energy Corporation, Appellant. |
—[*1]
In an action to recover damages for personal injuries, the defendant Keyspan EnergyCorporation appeals from an order of the Supreme Court, Kings County (Rothenberg, J.), datedAugust 13, 2009, which granted that branch of the plaintiff's motion which was pursuant toCPLR 3126 to strike its answer for failure to comply with discovery demands.
Ordered that the order is affirmed, with costs.
"The nature and degree of the sanction to be imposed on a motion pursuant to CPLR 3126 iswithin the discretion of the motion court" (Pirro Group, LLC v One Point St., Inc., 71 AD3d 654, 655 [2010];see Novick v DeRosa, 51 AD3d885 [2008]). "The drastic remedy of striking a pleading pursuant to CPLR 3126 (3) forfailure to comply with court-ordered disclosure should be granted only where the conduct of theresisting party is shown to be willful and contumacious" (Pirro Group, LLC v One Point St.,Inc., 71 AD3d at 655; see Novick vDeRosa, 51 AD3d 885 [2008]).
Here, the appellant's willful and contumacious conduct can be inferred from its repeatedfailure to comply with the plaintiff's request for documents and the Supreme Court's ordersseeking to enforce that request. Accordingly, the Supreme Court providently exercised itsdiscretion in granting that branch of the plaintiff's motion which was to strike the appellant'sanswer (see Pirro Group, LLC v OnePoint St., Inc., 71 AD3d 654 [2010]; Byam v City of New York, 68 AD3d 798 [2009]; Schwartz v Suebsanguan, 15 AD3d565 [2005]). Prudenti, P.J., Covello, Florio and Belen, JJ., concur.