Opinion
April 24, 1995
Appeal from the Supreme Court, Nassau County (Saladino, J.).
Ordered that the appeals from the orders entered June 16, 1993, are dismissed, without costs or disbursements, since the appeals from those orders are academic in light of the order dated November 19, 1993; and it is further,
Ordered that the order dated November 19, 1993, is affirmed, without costs or disbursements.
The nature and degree of the penalty to be imposed pursuant to CPLR 3126 is generally a matter left to the discretion of the trial court. In addition, the penalty of preclusion is extreme and should only be levied when the failure to disclose has been willful or contumacious (see, Matter of Piscionere, 161 A.D.2d 596; Delaney v Automated Bread Corp., 110 A.D.2d 677). The defendant Robert Wulwick did not demonstrate that the plaintiffs' failure to reveal the identity of the nonparty witness Helen Mattson was due to willful or contumacious behavior. Thus, the Supreme Court did not improvidently exercise its discretion by denying preclusion of her testimony at trial.
We agree with the Supreme Court that there remain questions of fact about whether the defendant Robert Wulwick committed medical malpractice. Sullivan, J.P., Miller, Copertino, Joy and Friedmann, JJ., concur.