Opinion
2002-01931
Submitted December 4, 2002.
June 30, 2003.
In an action, inter alia, to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Kings County (Harkavy, J.), dated December 4, 2001, which, inter alia, granted the plaintiff's motion pursuant to CPLR 3126 to strike her answer.
Norman S. Goldsmith, New York, N.Y., for appellant.
Amos Weinberg, Great Neck, N.Y., for respondent.
Before: ANITA R. FLORIO, J.P., WILLIAM D. FRIEDMANN, THOMAS A. ADAMS, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the order is reversed, as a matter of discretion, with costs, the motion is denied, and the answer is reinstated.
"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" ( Brennan v. McCarthy, 255 A.D.2d 477; see DeCintio v. Ahmed, 276 A.D.2d 463, 464; Vancott v. Great Atl. Pac. Tea Co., 271 A.D.2d 438). In the instant case, the record does not support the conclusion that the defendant willfully and deliberately failed to answer the plaintiff's interrogatories. Rather, the record shows that the defendant answered the interrogatories, and nothing in the record demonstrates how the Supreme Court or the plaintiff found those answers deficient. Therefore, the Supreme Court improvidently exercised its discretion in granting the plaintiff's motion, inter alia, to strike the defendant's answer ( see Centerport Ins. Agency v. Atlantic Fabricators of Rhode Is., 277 A.D.2d 414, 415; DeCintio v. Ahmed, supra; Vancott v. Great Atl. Pac. Tea Co., supra; Brennan v. McCarthy, supra).
FLORIO, J.P., FRIEDMANN, ADAMS and CRANE, JJ., concur.