Opinion
February 27, 1992
Appeal from the Supreme Court, New York County (Myriam J. Altman, J.).
Although the striking of a pleading pursuant to CPLR 3126 is an extreme and drastic penalty to be invoked only where the refusal to obey an order for disclosure or failure to disclose pursuant to notice was clearly contumacious or deliberate (Henry Rosenfeld, Inc. v. Bower Gardner, 161 A.D.2d 374), it is equally well settled that the nature and degree of the penalty to be imposed for such a refusal or failure is a matter lying within the sound discretion of the court (Brandi v. Chan, 151 A.D.2d 853, 854, appeal dismissed 75 N.Y.2d 789).
Here, we perceive no abuse of discretion. The record shows that plaintiff repeatedly refused to comply with prior court orders, two stipulations and a multitude of letters from defendant's counsel requesting responses to defendant's interrogatories. As a result, defendant was compelled to make numerous motions over a period of some two years in an unsuccessful attempt to obtain complete disclosure. It is not true, as plaintiff argues, that the relevancy and appropriateness of his responses are in issue on the present appeal, the IAS court, in a prior order from which defendant did not appeal, having specifically found, after striking 56 of defendant's interrogatories, that all of the remaining document demands were proper (Fellner v. Texas Mexican Ry. Co., 76 A.D.2d 820, 821 [Silverman, J., dissenting]). These facts support the IAS court's determination that plaintiff's conduct was willful and contumacious, and justify the sanction of dismissal (Zletz v. Wetanson, 67 N.Y.2d 711, 713; Brandi v. Chan, supra).
We have reviewed plaintiff's remaining contentions and find them to be without merit.
Concur — Milonas, J.P., Kupferman, Ross and Smith, JJ.