SLADOWSKI CASOLARO v. WORLD CHAMPIONSHIP WRESTLING INC (2008)

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Nassau County (Brandveen, J.), dated April 25, 2007, which denied her motion, inter alia, to strike the defendants' answers pursuant to CPLR 3126 for failure to provide disclosure, and (2) an order of the same court dated July 19, 2007, which denied her motion, inter alia, to compel the defendant Nassau Veterans Memorial Coliseum to produce another employee for a deposition and granted the defendants' cross motion for a protective order.

ORDERED that the orders are affirmed, with one bill of 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 Kihl v. Pfeffer, 94 N.Y.2d 118, 122-123, 700 N.Y.S.2d 87, 722 N.E.2d 55;  Joseph v. Iannace, 6 A.D.3d 502, 503, 774 N.Y.S.2d 419;  Ordonez v. Guerra, 295 A.D.2d 325, 326, 743 N.Y.S.2d 156).   Here, the court did not improvidently exercise its discretion in denying that branch of the plaintiff's motion which was to strike the defendants' answers as the plaintiff failed to demonstrate that any purported failure on the part of the defendants to comply with a disclosure order was willful, deliberate, and contumacious conduct or its equivalent (see Emanuel v. Broadway Mall Props., 293 A.D.2d 708, 709, 741 N.Y.S.2d 278;  Poulas v. U-Haul Intl., 288 A.D.2d 202, 732 N.Y.S.2d 579).   The record demonstrates that the defendants had complied with all, or nearly all, of the plaintiff's demands.

 Moreover, the court did not improvidently exercise its discretion in denying that branch of the plaintiff's motion which was to compel the defendant Nassau Veterans Memorial Coliseum (hereinafter the Coliseum) to produce an additional witness for a deposition.   A corporate entity has the right to designate, in the first instance, the employee who shall be examined (see Barone v. Great Atl. & Pac. Tea Co., 260 A.D.2d 417, 687 N.Y.S.2d 718;  Mercado v. Alexander, 227 A.D.2d 391, 642 N.Y.S.2d 552;  Defina v. Brooklyn Union Gas Co., 217 A.D.2d 681, 682, 630 N.Y.S.2d 533;  Tower v. Chemical Bank, 140 A.D.2d 514, 528 N.Y.S.2d 413).   The plaintiff failed to sustain her burden of demonstrating that the Coliseum representative who had already been deposed had insufficient knowledge, or was otherwise inadequate, and that there was a substantial likelihood that the persons sought by the plaintiff for additional depositions possessed information which was material and necessary to the prosecution of the case (see Barone v. Great Atl. & Pac. Tea Co., 260 A.D.2d 417, 687 N.Y.S.2d 718;  Saxe v. City of New York, 250 A.D.2d 751, 671 N.Y.S.2d 1002;  Carter v. New York City Bd. of Educ., 225 A.D.2d 512, 638 N.Y.S.2d 770;  Zollner v. City of New York, 204 A.D.2d 626, 612 N.Y.S.2d 627).

The plaintiff's remaining contentions are without merit.