Opinion
May 15, 1995
Appeal from the Supreme Court, Rockland County (Miller, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
CPLR 3126 provides that when a party "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed * * * the court may make such orders with regard to the failure or refusal as are just." "In order to invoke the drastic remedy of a preclusion order which effectively results in the striking of a pleading, the court must determine that the party's failure to comply with a disclosure order was the result of willful, deliberate, and contumacious conduct or its equivalent" (Vatel v City of New York, 208 A.D.2d 524, 525; see also, Matter of Piscionere, 161 A.D.2d 596, 597). The burden of establishing that a failure or refusal to disclose was the result of willful, deliberate, and contumacious conduct rests with the party seeking preclusion (see, Ahroni v City of New York, 175 A.D.2d 789; Forman v Jamesway Corp., 175 A.D.2d 514). The motion papers fail to establish such conduct. Accordingly, it was not an improvident exercise of the court's discretion to grant the motion pursuant to CPLR 3126 only to the extent of conditionally precluding certain evidence. Balletta, J.P., O'Brien, Thompson and Altman, JJ., concur.