Vivian Mangiapane, Respondent, v. Brookhaven Beach Health Related Facility, Appellant

Vivian Mangiapane, Respondent, v Brookhaven Beach Health Related Facility, Appellant. [759 NYS2d 890] [MAJORITY] —In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Schmidt, J.), dated July 12, 2002, which, in effect, denied its motion pursuant to CPLR 3126 to preclude the plaintiff from offering any evidence at trial and to dismiss the complaint for failure to comply with discovery. 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 generally left to the discretion of the Supreme Court (see Kingsley v Kantor, 265 AD2d 529 [1999]; Espinal v City of New York, 264 AD2d 806 [1999]). However, to invoke the drastic remedy of striking a pleading, or of preclusion, a 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 (see Patterson v New York City Health & Hosps. Corp., 284 AD2d 516 [2001]; Cianciolo v Trism Spedalized Carriers, 274 AD2d 369 [2000]). Here, there was no showing of such willful, deliberate, and contumacious conduct. Thus, the Supreme Court properly denied the defendant’s motion. Santucci, J.P., Smith, Luciano and Mastro, JJ., concur.