MARTIN v. CITY OF NEW YORK (2007)

In an action to recover damages for personal injuries, etc., the defendants City of New York and the Board of Education of the City of New York appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated September 22, 2006, as granted that branch of the plaintiffs' motion which was pursuant to CPLR 3126(3) to strike their answer.

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 Bomzer v. Parke-Davis, Div. of Warner Lambert Co., 41 A.D.3d 522, 839 N.Y.S.2d 110;  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).   The drastic remedy of striking a pleading pursuant to CPLR 3126(3) 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 Bomzer v. Parke-Davis, Div. of Warner Lambert Co., 41 A.D.3d 522, 839 N.Y.S.2d 110;   Goldstein v. Kingsbrook Jewish Med. Ctr., 39 A.D.3d 816, 834 N.Y.S.2d 327;  cf. Harris v. City of New York, 211 A.D.2d 663, 664, 622 N.Y.S.2d 289).

 Here, the appellants' willful and contumacious conduct can be inferred from their repeated failures, over an extended period of time, to comply with court orders directing disclosure and the absence of any reasonable excuse for these failures (see Maiorino v. City of New York, 39 A.D.3d 601, 834 N.Y.S.2d 272;  Vanalst v. City of New York, 302 A.D.2d 515, 755 N.Y.S.2d 260;  Montgomery v. City of New York, 296 A.D.2d 386, 745 N.Y.S.2d 464).   Accordingly, the Supreme Court providently exercised its discretion in striking the appellants' answer.