BRENNAN v. McCARTHY

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

Cynthia J. BRENNAN, et al., Respondents, v. Daniel E. McCARTHY, et al., Appellants.

Decided: November 23, 1998

ROSENBLATT, J.P., COPERTINO, McGINITY and LUCIANO, JJ. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Garden City, N.Y. (Christine Gasser of counsel), for appellants. Keith H. Weidman, Islandia, N.Y., for respondents.

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Suffolk County (D'Emilio, J.), dated September 26, 1997, which granted those branches of the plaintiffs' motion which were to strike the defendants' answer and for summary judgment on the issue of liability.

ORDERED that the order is reversed, as a matter of discretion, with costs, those branches of the plaintiffs' motion which were to strike the defendants' answer and for summary judgment on the issue of liability are denied, the answer is reinstated, and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings consistent herewith.

 Although the nature and degree of the penalty to be imposed pursuant to CPLR 3126 is generally a matter left to the sound discretion of the trial court, the penalty of striking an answer for failure to disclose is extreme and should only be levied where the failure has been willful or contumacious (see, Stathoudakes v Kelmar Contr. Corp., 147 A.D.2d 690, 538 N.Y.S.2d 297;  Delaney v. Automated Bread Corp., 110 A.D.2d 677, 487 N.Y.S.2d 402).   In this case, the record does not show that the defendants' failure to produce certain information and documents responsive to the plaintiffs' demands was willful or contumacious.   Indeed, the defendants demonstrated that they had already produced certain information or that certain of the requested documents were not available.   Under the circumstances, the court improvidently exercised its discretion in striking the defendants' answer.   The defendants should be afforded a time-limited opportunity set by the court to provide the requested information, or if such information and documents cannot be provided, to furnish a satisfactory explanation by a person with knowledge of their efforts to obtain that information.   Failure to so provide the information requested or an affidavit in lieu thereof will result in the striking of their answer.

MEMORANDUM BY THE COURT.

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