Opinion
2002-02811
Argued December 2, 2002.
December 16, 2002.
In an action to recover payment due under the terms of a promissory note and personal guaranty, the defendants appeal from stated portions of an order of the Supreme Court, Queens County (Schmidt, J.), dated February 22, 2002, which, inter alia, denied that branch of their motion which was to dismiss the complaint.
Mehler Buscemi, New York, N.Y. (Francis R. Buscemi of counsel), for appellants.
Charles H. Ryans, Woodside, N.Y., for respondent.
Before: DAVID S. RITTER, J.P., GLORIA GOLDSTEIN, STEPHEN G. CRANE, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
It is well settled that "where a party disobeys a court order, and by his [or her] conduct frustrates the disclosure scheme provided by the CPLR, dismissal of a pleading is within the broad discretion of the trial court" (Castrignano v. Flynn, 255 A.D.2d 352, 353; see CPLR 3126; Ranfort v. Peak Tours, 250 A.D.2d 747; Frias v. Fortini, 240 A.D.2d 467; Kubacka v. Town of N. Hempstead, 240 A.D.2d 374). The drastic remedy of striking a pleading is inappropriate, however, absent a clear showing that the failure to comply with discovery demands is willful, contumacious, or in bad faith (see CPLR 3126; Barth v. City of New York, 294 A.D.2d 386, 387; Kaplan v. Emmett, 265 A.D.2d 307).
Here, such a showing is absent. Thus the court providently exercised its discretion in denying that branch of the defendants' motion which was to dismiss the complaint (see Parente v. New York Times Co., 277 A.D.2d 438; Kaplan v. Emmett, supra; Garcia v. First Spanish Baptist Church of Islip, 259 A.D.2d 465).
The defendants' remaining contentions are without merit.
RITTER, J.P., GOLDSTEIN, CRANE and MASTRO, JJ., concur.