Opinion
March 9, 1998
Appeal from the Supreme Court, Suffolk County (Doyle, J.).
Ordered that the order is modified, on the law and as a matter of discretion, by deleting the provision thereof which precluded the defendant from introducing any evidence at trial on the issue of liability; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
CPLR 3126 provides that when a party "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed * * * the court may make such orders with regard to the failure or refusal as are just". However, "'[i]n order to invoke the drastic remedy of a preclusion order which effectively results in the striking of a pleading, the court must determine that the party's failure to comply with a disclosure order was the result of willful, deliberate or contumacious conduct or its equivalent'" ( Parish Constr. Corp. v. Franlo Tile, 215 A.D.2d 545, 546; Vatel v. City of New York, 208 A.D.2d 524, 525). The burden of establishing that a failure or refusal to disclose was the result of willful deliberate and contumacious conduct rests with the party seeking the order of preclusion ( see, Ahroni v. City of New York, 175 A.D.2d 789). The record fails to establish such conduct. In fact, at the deposition of the injured plaintiff, his attorney acknowledged that the defendant had gone into bankruptcy and was "unable to present a witness for their examination".
The defendant's remaining contention is without merit.
O'Brien, J. P., Ritter, Thompson, Friedmann and Goldstein, JJ., concur.