Opinion
April 8, 1985
Appeal from the Supreme Court, Queens County (Kunzeman, J., Leviss, J.).
Order affirmed, with costs. Defendant's time to comply with the order dated June 3, 1983 is extended until 30 days after service upon it of a copy of the order to be made hereon, with notice of entry.
By order dated November 2, 1983, we dismissed defendant's appeal from the order of June 2, 1983 upon the ground that it was not appealable as a matter of right. Thus, we do not review the validity of that order on this appeal. The sole question we consider is whether the conditional striking of defendant's answer constituted an appropriate penalty for failure to comply with the prior order.
The penalty of striking a pleading for failure to comply with an order of disclosure (CPLR 3126) is an extreme one which is warranted only where the failure has been willful or contumacious ( Bassett v. Bando Sangsa Co., 103 A.D.2d 728; Oppenheim Macnow v. Worth, 103 A.D.2d 687; Joseph v. Roller Castle, 100 A.D.2d 839; Battaglia v. Hofmeister, 100 A.D.2d 833; cf. Baumann v. Dee, 100 A.D.2d 504). Under the facts and circumstances of this case, we conclude that defendant should be granted one final opportunity to comply with the discovery order within the time we have prescribed ( Joseph v. Roller Castle, supra).
In the event defendant fails to so comply, its answer shall be stricken. Titone, J.P., Bracken, Rubin and Lawrence, JJ., concur.