| Thompson v Dallas BBQ |
| 2011 NY Slip Op 04451 [84 AD3d 1221] |
| May 24, 2011 |
| Appellate Division, Second Department |
| Evelyn Thompson, Appellant, v Dallas BBQ et al.,Respondents. |
—[*1] McMahon, Martine & Gallagher, Brooklyn, N.Y. (Patrick W. Brophy of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Grays, J.), dated June 21, 2010, which denied her motionpursuant to CPLR 3126 to strike the defendants' answer for failure to provide certain disclosure.
Ordered that the order is affirmed, with costs.
Pursuant to CPLR 3126, "[a] court may strike an answer as a sanction if a defendant 'refusesto obey an order for disclosure or willfully fails to disclose information which the court findsought to have been disclosed' " (Mazza v Seneca, 72 AD3d 754, 754 [2010], quotingCPLR 3126). The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lieswithin the sound discretion of the trial court (see CPLR 3126 [3]; Kihl v Pfeffer,94 NY2d 118, 122-123 [1999]; Bernal v Singh, 72 AD3d 716 [2010]). The drasticremedy of striking a pleading is not appropriate absent a clear showing that the failure to complywith discovery demands is willful and contumacious (see CPLR 3126 [3]; Kyung SooKim v Goldmine Realty, Inc., 73 AD3d 709 [2010]; Moray v City of Yonkers, 72AD3d 766 [2010]).
Here, there was no such clear showing that the defendants' conduct was willful andcontumacious (see Dank v Sears Holding Mgt. Corp., 69 AD3d 557 [2010]).Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiff'smotion to strike the defendants' answer. Skelos, J.P., Dickerson, Hall, Austin and Miller, JJ.,concur.