Summary
finding court abused its discretion by striking City's answer even though City delayed in complying with discovery demands
Summary of this case from Wencewicz v. Shawmut Design & Constr.Opinion
May 14, 1996
Appeal from the Supreme Court, New York County (Jane Solomon, J.).
While it is true that the nature and degree of the penalty to be imposed for failure to comply with a discovery order is generally a matter left to the sound discretion of the trial court ( see, Cherry v. Herbert Co., 212 A.D.2d 203, 209; Associated Mut. Ins. Co. v. Dyland Tavern, 105 A.D.2d 892), the penalty of striking an answer for failure to disclose is extreme and should be levied only where the failure has been willful or contumacious ( see, Jeffcoat v. Andrade, 205 A.D.2d 374; Stathoudakes v. Kelmar Contr. Corp., 147 A.D.2d 690).
In the matter at bar, even though the City delayed in complying with discovery demands, the court abused its discretion by striking the City's answer without according defendant a second chance to furnish the information it had allegedly not turned over, thereby effectively barring the City from defending the lawsuit on its merits.
We have considered plaintiff's remaining arguments and find them to be without merit.
Concur — Ellerin, J.P., Wallach, Ross, Nardelli and Tom, JJ.