Opinion
01-05277
February 6, 2002
March 11, 2002.
In an action to recover damages for personal injuries, the plaintiffs Elkin Grisales and Rosa Grisales appeal from an order of the Supreme Court, Queens County (Taylor, J.), dated May 2, 2001, which denied their motion pursuant to CPLR 3126 to strike the defendants' answer or preclude them from offering any evidence in support of their position at trial.
Salenger Sack, New York, N.Y. (Gregory S. Gennarelli of counsel), for appellants Elkin Grisales and Rosa Grisales.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Barry P. Schwartz and Scott Shorr of counsel), for respondents.
DAVID S. RITTER, J.P., SANDRA J. FEUERSTEIN, CORNELIUS J. O'BRIEN, HOWARD MILLER, and SANDRA L. TOWNES, JJ.
ORDERED that the order is affirmed, with costs.
The nature and degree of the penalty to be imposed pursuant to CPLR 3126 is generally a matter left to the sound discretion of the Supreme Court, and the harsh penalty of striking a pleading, or preclusion, which effectively results in the striking of a pleading, is inappropriate absent a clear showing that the failure to comply with discovery demands was willful, contumacious, or in bad faith (see, Guiliano v. Carlisle, 286 A.D.2d 417; Vatel v. City of New York, 208 A.D.2d 524). The Supreme Court providently exercised its discretion in denying the appellants' motion, as they failed to make the required showing (see, LaManna v. Cahn Woolen Co., 249 A.D.2d 451).
The appellants' remaining contentions are without merit.