Opinion
December 12, 1983
In an action to recover damages for personal injuries, defendant appeals from an order of the Supreme Court, Orange County (Green, J.), dated July 23, 1982, which denied its motion to dismiss the complaint. Order affirmed, without costs or disbursements. The extreme penalty of striking a pleading for failure to comply with an order of disclosure is warranted only when the failure has been willful or contumacious (see, e.g., Plainview Assoc. v. Miconics Inds., 90 A.D.2d 825; Ortiz v. New York City Health Hosps. Corp., 72 A.D.2d 741; cf. Kamp v. DHJ Inds., 75 A.D.2d 636). Inasmuch as plaintiff fully complied with the demands for discovery prior to the time that the motion was noticed to be heard, we cannot say that Special Term's determination constitutes an improvident exercise of discretion (cf. Unity Mfg. Corp. v St. Paul Fire Mar. Ins. Co., 97 A.D.2d 462). Titone, J.P., Gibbons, O'Connor and Rubin, JJ., concur.