Opinion
April 2, 1984
In an action to recover damages for personal injuries, defendants Roller Castle, Ltd., and Cosimo De Luca appeal from an order of the Supreme Court, Nassau County (Kutner, J.), dated August 2, 1983, which (1) granted plaintiff's motion to strike their answer for failure to comply with a prior discovery order of the court, dated March 17, 1983, unless they complied with said order, and (2) denied their cross motion to vacate the prior discovery order. ¶ Order modified, on the law and as a matter of discretion, by adding to the provision striking appellants' answer unless appellants comply with the order dated March 17, 1983 the following: "or, if they cannot comply with respect to any item sought, submit an affidavit by a person with knowledge as to the efforts engaged in to secure that item, in which event appellants are to be precluded from offering that item in evidence". As so modified, order affirmed, without costs or disbursements. Appellants' time to comply with either of these conditions is extended until 10 days after service upon them of a copy of the order to be made hereon, with notice of entry. ¶ The extreme penalty of striking a pleading for failure to comply with an order of disclosure is warranted only when the failure has been willful or contumacious (see, e.g., Battaglia v Hofmeister, 100 A.D.2d 833; Walsh v Hudson Tr. Lines, 98 A.D.2d 745; Plainview Assoc. v Miconics Inds., 90 A.D.2d 825). It appears that, while appellants initially informed the plaintiff that the documents were no longer in their possession, they now take the position that after a further search of their records some of the requested documents may be located and will be produced. A balancing of interests indicates that the appropriate sanction in such circumstances is to permit appellants one final opportunity to comply with the discovery order on the conditions we have set forth (see Boes v Harris, 96 A.D.2d 849; Passarelli v National Bank, 81 A.D.2d 635; Newman v Chartered New England Corp., 63 A.D.2d 617; cf. Unity Mfg. Corp. v St. Paul Fire Mar. Ins. Co., 97 A.D.2d 462). Titone, J.P., O'Connor, Boyers and Eiber, JJ., concur.