BOMZER v. PARKE DAVIS (2007)

In an action, inter alia, to recover damages for wrongful termination of employment, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Cohalan, J.), dated April 6, 2006, as granted that branch of the defendants' motion which was to strike the amended complaint pursuant to CPLR 3126.

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

 The nature and degree of the sanction to be imposed on a motion pursuant to CPLR 3126 is a matter of discretion with the motion court (see Maiorino v. City of New York, 39 A.D.3d 601, 834 N.Y.S.2d 272;  Soto v. City of Long Beach, 197 A.D.2d 615, 602 N.Y.S.2d 691).   However, the drastic remedy of striking a pleading pursuant to CPLR 3126 for failure to comply with court-ordered disclosure should be granted only where the conduct of the resisting party is shown to be willful and contumacious (see Goldstein v. Kingsbrook Jewish Med. Ctr., 39 A.D.3d 816, 834 N.Y.S.2d 327).

 Here, the plaintiff's willful and contumacious conduct can be inferred from his repeated failures, over an extended period of time, to comply with court orders directing disclosure and the absence of any reasonable excuse for such failures (see Maiorino v. City of New York, supra;  Casey v. Casey, 39 A.D.3d 579, 835 N.Y.S.2d 277;  Adamski v. Schuyler Hosp., Inc., 36 A.D.3d 1198, 829 N.Y.S.2d 718;  Sowerby v. Camarda, 20 A.D.3d 411, 798 N.Y.S.2d 125;  Vanalst v. City of New York, 302 A.D.2d 515, 755 N.Y.S.2d 260).   Accordingly, the Supreme Court providently struck the amended complaint.