KRAJCA v. PANZA (1999)

Supreme Court, Appellate Division, Second Department, New York.

Josef KRAJCA, appellant, v. Thomas PANZA, respondent.

Decided: June 28, 1999

SONDRA MILLER, J.P., THOMAS R. SULLIVAN, WILLIAM D. FRIEDMANN, DANIEL F. LUCIANO and SANDRA J. FEUERSTEIN, JJ.

Ted J. Tanenbaum & Associates, P.C., Mineola, N.Y. (Ted J. Tanenbaum of counsel), for appellant. Charles P. DeMartin, Huntington, N.Y. (Patricia Gallagher-Bansbach of counsel), for respondent.

In an action to recover on a guaranty, the plaintiff appeals from an order of the Supreme Court, Nassau County (Lockman, J.), dated August 3, 1998, which granted that branch of the defendant's motion which was to dismiss the complaint pursuant to CPLR 3126 for failure to provide discovery.

ORDERED that the order is affirmed, with costs.

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter within the discretion of the trial court (see, Associated Mut. Ins. Co. v. Dyland Tavern, 105 A.D.2d 892, 482 N.Y.S.2d 359). While the drastic remedy of striking a pleading for failure to disclose should not be imposed unless the party's failure to comply was the result of willful, deliberate, and contumacious conduct or its equivalent (see, Beard v. Peconic Foam Insulation Corp., 149 A.D.2d 555, 540 N.Y.S.2d 258), the record supports the Supreme Court's conclusion that the plaintiff's failure in this case warranted dismissal of the complaint.

MEMORANDUM BY THE COURT.

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