Opinion
Submitted May 19, 1999
June 28, 1999
In an action to recover on a guaranty, the plaintiff appeals from an order of the Supreme Court, Nassau County (Lockman, J.), dated August 3, 1998, which granted that branch of the defendant's motion which was to dismiss the complaint pursuant to CPLR 3126 for failure to provide discovery.
Ted J. Tanenbaum Associates, P.C., Mineola, N.Y. (Ted J. Tanenbaum of counsel), for appellant.
Charles P. DeMartin, Huntington, N.Y. (Patricia Gallagher-Bansbach of counsel), for respondent.
SONDRA MILLER, J.P., THOMAS R. SULLIVAN, WILLIAM D. FRIEDMANN, DANIEL F. LUCIANO, SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
The nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter within the discretion of the trial court ( see, Associated Mut. Ins. Co. v. Dyland Tavern, 105 A.D.2d 892). While the drastic remedy of striking a pleading for failure to disclose should not be imposed unless the party's failure to comply was the result of willful, deliberate, and contumacious conduct or its equivalent ( see, Beard v. Peconic Foam Insulation Corp., 149 A.D.2d 555), the record supports the Supreme Court's conclusion that the plaintiff's failure in this case warranted dismissal of the complaint.