Rossi v. Lin

In a medical malpractice action, the defendant appeals from (1) an order of the Supreme Court, Queens County (Lane, J.), dated February 3, 1991, which denied his motion pursuant to CPLR 3126 to dismiss the complaint for failure to provide appropriate discovery, and (2) so much of an order of the same court dated November 4, 1991, as denied a subsequent motion by the defendant, pursuant to CPLR 3126, to dismiss the complaint for failure to provide discovery. Ordered that the order dated February 3, 1991, is affirmed; and it is further, Ordered that the order dated November 4, 1991, is affirmed insofar as appealed from; and it is further, Ordered that the respondent is awarded one bill of 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. 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, Mayers v Consolidated Charcoal Co., 154 AD2d 577; Stathoudakes v Kelmar Contr. Corp., 147 AD2d 690, 691). Contrary to the defendant’s contentions, the denial by the Supreme Court of the defendant’s motions to dismiss the complaint constituted a proper exercise of discretion under the circumstances. Thompson, J. P., Balletta, Rosenblatt and Eiber, JJ., concur.