Opinion
CA 04-00261.
December 30, 2004.
Appeal from an order of the Supreme Court, Erie County (Barbara Howe, J.), entered October 29, 2003 in an action to recover damages for dental malpractice. The order granted plaintiff's cross motion and struck defendant's answer.
Before: Green, J.P., Gorski, Martoche, Lawton and Hayes, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Defendant appeals from an order of Supreme Court that granted plaintiff's cross motion and struck defendant's answer pursuant to CPLR 3126 (3) for failure to comply with an earlier order directing production of certain records. "[T]he type and degree of sanction [for a violation of CPLR 3126] will be left to the discretionary authority of the trial court which will remain undisturbed absent an abuse thereof" ( Osterhoudt v. Wal-Mart Stores, 273 AD2d 673, 674). "While the nature and degree of the penalty to be imposed on a motion pursuant to CPLR 3126 is a matter of the Supreme Court's discretion, striking a pleading is appropriate where there is a clear showing that the failure to comply with discovery demands is willful, contumacious, or in bad faith" ( Birch Hill Farm v. Reed, 272 AD2d 282, 282 [internal citations omitted]). Plaintiff met her initial burden of establishing willful, contumacious or bad faith conduct by defendant, thereby shifting the burden to defendant to offer a reasonable excuse ( see Herrera v. City of New York, 238 AD2d 475, 476). Defendant failed to meet his burden ( see Nunn v. GTE Sylvania, 251 AD2d 1089, 1091). Thus we conclude that the court properly exercised its discretion by striking the answer.