Mayers v. Consolidated Charcoal Co.

— In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (I. Aronin, J.), dated October 5, 1988, which denied their motion pursuant to CPLR 3126 (3) to strike the complaint. Ordered that the order is affirmed, with costs. It is well settled that 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 trial court (see, e.g., Stathou [578] dakes v Kelmar Contr. Corp., 147 AD2d 690, 691; Associated Mut. Ins. Co. v Dyland Tavern, 105 AD2d 892, 893). Moreover, the drastic sanction of striking a pleading should not be invoked unless the resisting party’s default is shown to be deliberate and contumacious (see, Read v Dickson, 150 AD2d 543; Stathoudakes v Kelmar Contr. Corp., supra; Scharlack v Richmond Mem. Hosp., 127 AD2d 580). Contrary to the defendants’ contentions, our review of the record discloses that the Supreme Court’s denial of the motion to strike the complaint constituted a proper exercise of discretion under the circumstances. Brown, J. P., Lawrence, Kooper and Spatt, JJ., concur.