Opinion
Submitted February 2, 2000
March 17, 2000
In an action to recover damages for personal injuries, the defendants appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Queens County (LaTorella, J.), dated November 16, 1998, as granted that branch of the plaintiff's motion which was to strike their answer and precluded them from offering any evidence at trial, and (2) from an order of the same court dated May 14, 1999, which denied their motion for reargument.
Morris, Duffy, Alonso Faley, LLP, New York, N.Y. (Yolanda L. Himmelberger and Andrea M. Alonso of counsel), for appellants.
Riconda Garnett, Valley Stream, N.Y. (John Riconda of counsel), for respondent.
DAVID S. RITTER, J.P., THOMAS R. SULLIVAN, SONDRA MILLER, DANIEL F. LUCIANO HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the appeal from the order dated May 14, 1999, is dismissed, as no appeal lies from an order denying reargument; and it is further,
ORDERED that the order dated November 16, 1998, is affirmed insofar as appealed from; and it is further,
ORDERED that the respondent is awarded one bill of costs.
While the nature and degree of the penalty to be imposed pursuant to CPLR 3216 N.Y.CPLR is a matter of discretion, the drastic remedy of preclusion, which results in the striking of a pleading, should be invoked only upon a clear showing that the noncomplying party's failure to provide discovery was willful, deliberate, and contumacious (see, Kihl v. Pfeffer, N.Y.2d [Nov. 30, 1999];Maillard v. Maillard, 243 A.D.2d 448; Garcia v. Kraniotakis, 232 A.D.2d 369; Vatel v. City of New York, 208 A.D.2d 524). Here, given the conduct of the appellants, the Supreme Court providently exercised its discretion in striking their answer and precluding them from testifying at trial.
RITTER, J.P., SULLIVAN, S. MILLER, LUCIANO, and H. MILLER, JJ., concur.