BODINE v. Shahriar Ahy, et al., Respondents. (2001)

In an action, inter alia, to recover damages for fraud, the plaintiff appeals from an order of the Supreme Court, Westchester County (Cowhey, J.), entered March 7, 2000, which granted the separate motions of the defendant Shahriar Ahy and the defendants Hamid Ladjevardi, Baltic Fund 1, L.P., Baltic Fund 1, LLC, and Baltic Management, LLC, pursuant to CPLR 3126 to dismiss the amended verified complaint insofar as asserted against them based on the plaintiff's failure to comply with court-ordered discovery.

ORDERED that the order is affirmed, with costs.

 The trial court properly dismissed the amended verified complaint insofar as asserted against the respondents.   It is within the discretion of the trial court to determine the nature and degree of the penalty to be imposed 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” (CPLR 3126;  see, DeJulio v. Wulf, 260 A.D.2d 425, 687 N.Y.S.2d 727;   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 plaintiff's willful and contumacious conduct can be inferred from his numerous adjournments of scheduled depositions, failure to produce requested documents, and failure to comply with the trial court's orders directing discovery compliance without an adequate excuse (see, Castrignano v. Flynn, 255 A.D.2d 352, 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).

The plaintiff's remaining contentions are either not properly before this court or without merit.