Josef Krajca, Appellant, v. Thomas Panza, Respondent

Josef Krajca, Appellant, v Thomas Panza, Respondent. Respondent. [693 NYS2d 185] [MAJORITY] —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. 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 AD2d 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 AD2d 555), the record supports the Supreme Court’s conclusion that the plaintiff’s failure in this case warranted dismissal of the complaint. S. Miller, J. P., Sullivan, Friedmann, Luciano and Feuerstein, JJ., concur.