Opinion
Argued November 23, 1999
January 18, 2000
In an action to recover damages for personal injuries, the plaintiffs appeal from so much of an order of the Supreme Court, Kings County (Bellard, J.), dated February 8, 1999, as denied their motion to strike the defendants' answer based on the defendants' alleged spoliation or destruction of evidence.
Shaw, Licitra, Bohner, Esernio Schwartz, P.C., Garden City, N Y (Robert J. Bohner and Alfred J. Amadio of counsel), for appellants.
Aaronson Rappaport Feinstein Deutsch, LLP, New York, N Y (Elliott Zucker of counsel), for respondents.
CORNELIUS J. O'BRIEN, J.P., SONDRA MILLER, LEO F. McGINITY and NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
The nature and degree of the penalty to be imposed for failing to disclose is within the discretion of the court (see, Garnett v. Hudson Rent A Car, 258 A.D.2d 559 ; Soto v. City of Long Beach, 197 A.D.2d 615 ). The drastic remedy of striking an answer is inappropriate absent a clear showing that the failure to comply with discovery demands was willful, contumacious, or in bad faith (see, Harris v. City of New York, 211 A.D.2d 663 ). Under the circumstances of this case, the Supreme Court providently exercised its discretion in denying the plaintiffs' motion to strike the defendants' answer (see, CPLR 3126; cf., Zoref v. Glassman, 258 A.D.2d 460; Jaffe v. PJA Motor Corp., 253 A.D.2d 853 ;DiDomenico v. C S Aeromatick Supplies, 252 A.D.2d 41 ).
O'BRIEN, J.P., S. MILLER, McGINITY, and SMITH, JJ., concur.