DeJULIO v. WULF (1999)

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Westchester County (Silverman, J.), dated March 11, 1998, which granted that branch of the plaintiff's motion which was for the imposition of sanctions for the defendants' failure to appear at an examination before trial.

ORDERED that the order is affirmed, with costs.

 The nature and degree of the penalty to be imposed pursuant to CPLR 3126 against a party who “refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed” is a matter within the discretion of the court (CPLR 3126;  see, Kubacka v. Town of N. Hempstead, 240 A.D.2d 374, 657 N.Y.S.2d 770;  Soto v. City of Long Beach, 197 A.D.2d 615, 602 N.Y.S.2d 691).   The defendants' willful and contumacious conduct can be inferred from their continued adjournment of scheduled depositions, the commencement of a baseless third-party action, and their failure to comply with the court's order directing depositions on a date certain without an adequate excuse (see, Castrignano v. Flynn, --- A.D.2d ----, 679 N.Y.S.2d 674;  Brady v. County of Nassau, 234 A.D.2d 408, 650 N.Y.S.2d 802;  Garcia v. Kraniotakis, 232 A.D.2d 369, 648 N.Y.S.2d 156).

MEMORANDUM BY THE COURT.