Opinion
Submitted September 10, 1999
October 25, 1999
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Nassau County (Burke, J.).
ORDERED that the order is affirmed, with costs.
The nature and degree of the penalty to be imposed on a motion pursuant to CPLR 3126 is a matter of discretion with the court (see, Lavi v. Lavi, 256 A.D.2d 602 ; Kubacka v. Town of N. Hempstead, 240 A.D.2d 374 ; Herrera v. City of New York, 238 A.D.2d 475 ). Under the circumstances of this case, the Supreme Court did not improvidently exercise its discretion in denying the defendants' motion to dismiss since there was no showing that the plaintiff's failure to comply with discovery was willful, contumacious, or in bad faith (see, Mohammed v. 919 Park Place Owners Corp., 245 A.D.2d 351 ; Parish Constr. Corp. v. Franlo Tile, 215 A.D.2d 545 ).
SANTUCCI, J.P., JOY, FRIEDMANN, and GOLDSTEIN, JJ., concur.