Guiliano v. Carlisle

In an action, inter alia, to recover damages for breach of fiduciary duty, the defendant Highview-Nyack Properties, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Rockland County (Meehan, J.), entered August 16, 2000, as denied that branch of its motion which was pursuant to CPLR 3126 to strike the answer and cross claims of the defendant Law Firm of Howard Mann.

Ordered that the order is affirmed insofar as appealed from, 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 is inappropriate absent a clear showing that the failure to comply with discovery demands was willful, contumacious, or in bad faith (see, DeCintio v Ahmed, 276 AD2d 463; Espinal v City of New York, 264 AD2d 806; Smith v Eastern Long Is. Hosp., 263 AD2d 477). The Supreme Court providently exercised its discretion in denying that branch of the appellant’s motion which was to strike the respondent’s answer and cross claims. Santucci, J. P., S. Miller, Luciano, Feuerstein and Adams, JJ., concur.