KINGSLEY v. KANTOR

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Supreme Court, Appellate Division, Second Department, New York.

Suzanne A. KINGSLEY, appellant, v. Charlotte KANTOR, respondent.

Decided: October 25, 1999

GUY JAMES MANGANO, P.J., DAVID S. RITTER, DANIEL W. JOY, LEO F. McGINITY and NANCY E. SMITH, JJ. Fuchsberg & Fuchsberg, New York, N.Y. (Martin Diennor and Abraham Fuchsberg of counsel), for appellant. Epstein Hill Grammatico & Gann, Mineola, N.Y. (Williamson & Williamson [Kenneth Williamson and Rebecca L. Novin] of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Nassau County (De Maro, J.), entered June 29, 1998, which, sua sponte, precluded her from offering any evidence relating to the information sought in the defendant's notice of discovery and inspection dated March 17, 1998, and (2) an order of the same court, dated September 17, 1998, which denied her motion to vacate the June 29, 1998, order.

ORDERED that on the court's own motion, the notice of appeal from the order entered June 29, 1998, is deemed to be an application for leave to appeal, and leave to appeal is granted (see, CPLR 5701[a][2] );  and it is further,

ORDERED that the orders are affirmed, with one bill of costs.

 The nature and degree of the penalty to be imposed pursuant to CPLR 3126 is generally a matter left to the discretion of the Supreme Court.   The penalty of preclusion is extreme and should only be imposed when the failure to disclose has been willful or contumacious (see, Garcia v. Kraniotakis, 232 A.D.2d 369, 648 N.Y.S.2d 156).   In the case at bar, the willful and contumacious character of the plaintiff's default can be inferred from her noncompliance with court orders, coupled with inadequate excuses for these defaults (see, Garcia v. Kraniotakis, supra).   Accordingly, the Supreme Court did not improvidently exercise its discretion in precluding the plaintiff from offering any evidence relating to the defendant's notice of discovery and inspection, or in denying her motion to vacate the order of preclusion (see, CPLR 3126;  Garcia v. Kraniotakis, supra;  see also, Macias v. New York City Tr. Auth., 240 A.D.2d 196, 658 N.Y.S.2d 276).

MEMORANDUM BY THE COURT.

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