McARTHUR v. NEW YORK CITY HOUSING AUTHORITY (2008)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Agate, J.), dated November 22, 2006, which granted the defendant's motion to dismiss the complaint pursuant to CPLR 3126 on the ground that she failed to comply with court-ordered disclosure.

ORDERED that the order is affirmed, with costs.

 The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the trial court (see Kihl v. Pfeffer, 94 N.Y.2d 118, 122-123, 700 N.Y.S.2d 87, 722 N.E.2d 55;  Rowell v. Joyce, 10 A.D.3d 601, 781 N.Y.S.2d 682;  My Carpet, Inc. v. Bruce Supply Corp., 8 A.D.3d 248, 777 N.Y.S.2d 308).   The striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands is willful and contumacious (see Town of Southampton v. Salten, 186 A.D.2d 796, 589 N.Y.S.2d 355).   The willful and contumacious character of a party's conduct can be inferred from the party's repeated failure to respond to demands and/or to comply with discovery orders (see Horne v. Swimquip, Inc., 36 A.D.3d 859, 830 N.Y.S.2d 218;  Sowerby v. Camarda, 20 A.D.3d 411, 798 N.Y.S.2d 125;  Bodine v. Ladjevardi, 284 A.D.2d 351, 352, 726 N.Y.S.2d 129).   Contrary to the plaintiff's contentions, the willful and contumacious character of the conduct could be properly inferred by the court from her repeated failures to comply with the court's discovery orders to appear for a deposition and an independent medical examination and to provide certain disclosure, including authorizations to obtain information and medical and employment records, without an adequate excuse (see Woolard v. Suffolk County Water Auth., 16 A.D.3d 582, 791 N.Y.S.2d 656;  Rowell v. Joyce, 10 A.D.3d 601, 781 N.Y.S.2d 682;  Alto v. Gilman Management Corp., 7 A.D.3d 650, 650-651, 776 N.Y.S.2d 823;  Russell v. B & B Indus., 309 A.D.2d 914, 766 N.Y.S.2d 374;  Gomez v. Gateway Demolition Corp., 293 A.D.2d 649, 740 N.Y.S.2d 652;  Abouzeid v. Cadogan, 291 A.D.2d 423, 737 N.Y.S.2d 634).