Grisales v. City of New York

In an action to recover damages for personal injuries, the plaintiffs Elkin Grisales and Rosa Grisales appeal from an order of the Supreme Court, Queens County (Taylor, J.), dated May 2, 2001, which denied their motion pursuant to CPLR 3126 to strike the defendants’ answer or preclude them from offering any evidence in support of their position at trial.

Ordered that the order is affirmed, with costs.

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 is generally a matter left to the sound discretion of the Supreme Court, and the harsh penalty of striking a pleading, or preclusion, which effectively results in the striking of a pleading, is inappropriate absent a clear showing that the failure to comply with discovery demands was willful, contumacious, or in bad faith (see, Guiliano v Carlisle, 286 AD2d 417; Vatel v City of New York, 208 AD2d 524).. The Supreme Court providently exercised its discretion in denying the appellants’ motion, as they failed to make the required showing (see, La-Manna v Cahn Woolen Co., 249 AD2d 451).

The appellants’ remaining contentions are without merit. Ritter, J.P., Feuerstein, O’Brien, H. Miller and Townes, JJ., concur.