FROST LINE REFRIGERATION INC v. FRUNZI (2005)

In an action, inter alia, for injunctive relief based upon a restrictive covenant in an employment contract, the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (Bucaria, J.), entered March 11, 2004, as granted that branch of the defendants' motion which was to strike the complaint pursuant to CPLR 3126.

ORDERED that the order is affirmed insofar as appealed from, with costs.

Contrary to the plaintiffs' contentions, the Supreme Court providently exercised its discretion in striking their complaint.   Although striking a pleading pursuant to CPLR 3126 is a drastic remedy, it is warranted where a party's conduct is shown to be willful, contumacious, or in bad faith (see Beneficial Mtge. Corp. v. Lawrence, 5 A.D.3d 339, 772 N.Y.S.2d 713).   Here, the willful and contumacious character of the plaintiffs' failure to respond to discovery could be inferred from their refusal to comply with the defendants' discovery request for over three years after the date set forth in a preliminary conference order, as well as the inadequate explanation offered to excuse their failure to comply (see Kihl v. Pfeffer, 94 N.Y.2d 118, 700 N.Y.S.2d 87, 722 N.E.2d 55;  Ali v. Kring, 272 A.D.2d 422, 707 N.Y.S.2d 913;  Brady v. County of Nassau, 234 A.D.2d 408, 650 N.Y.S.2d 802).