Smith v. Bynum

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (D’Emilio, J.), dated April 14, 1998, which denied their motion pursuant to CPLR 3126 to strike the defendants’ answer for failure to appear for depositions. [627] Ordered that the order is affirmed, without costs or disbursements. It is well established that the drastic remedy of striking an answer is inappropriate absent a clear showing that the failure to comply with discovery is willful, contumacious, or in bad faith (see, CPLR 3126; Olmoz v Town of Fishkill, 258 AJD2d 447; Selamaj v City of New York, 257 AD2d 616). In this case, the plaintiffs failed to make such a showing. We note that the plaintiffs have failed to establish their entitlement to disclosure of post-accident repairs (see, Watson v FHE Servs., 257 AD2d 618). O’Brien, J. P., Thompson, Krausman and Luciano, JJ., concur.