GARNETT v. HUDSON RENT CAR (1999)

In an action, inter alia, to recover damages for breach of contract, the defendants appeal from an order of the Supreme Court, Nassau County (Levitt, J.), dated January 22, 1998, which granted the plaintiff's motion to strike their answer and denied their cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

 Pursuant to CPLR 3126, the Supreme Court is empowered to strike the answer of a defendant.   While the nature and degree of the penalty to be imposed pursuant to CPLR 3126 is within the discretion of the court (Zletz v. Wetanson, 67 N.Y.2d 711, 499 N.Y.S.2d 933, 490 N.E.2d 852;  Kubacka v. Town of N. Hempstead, 240 A.D.2d 374, 657 N.Y.S.2d 770) the drastic remedy of striking an answer is inappropriate absent a clear showing that the failure to comply with discovery demands is willful, contumacious, or in bad faith (see, Harris v. City of New York, 211 A.D.2d 663, 664, 622 N.Y.S.2d 289).   Under the circumstances here, where defendants supplied false and fraudulent information, we find that the court did not improvidently exercise its discretion in granting the motion to strike the answer (cf., 317 W. 87 Assocs. v. Dannenberg, 159 A.D.2d 245, 552 N.Y.S.2d 236).  Accordingly, the defendants' cross motion for summary judgment dismissing the complaint was properly denied (see generally, Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).

MEMORANDUM BY THE COURT.