Avenue C Construction, Inc. v. Gassner

306 A.D.2d 506, 761 N.Y.S.2d 864

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 30, 2003
• Status: Published

Opinion

—In an action, inter alia, to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Kings County (Harkavy, J.), dated December 4, 2001, which, inter alia, granted the plaintiffs motion pursuant to CPLR 3126 to strike her answer.

Ordered that the order is reversed, as a matter of discretion, with costs, the motion is denied, and the answer is reinstated.

“Although 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, the penalty of striking an answer for failure to disclose is extreme and should only be levied where the failure has been willful or contumacious” (Brennan v McCarthy, 255 AD2d 477 [1998]; see DeCintio v Ahmed, 276 AD2d 463, 464 [2000]; Vancott v Great Atl. & Pac. Tea Co., 271 AD2d 438 [2000]). In the instant case, the record does not support the conclusion that the defendant willfully and deliberately failed to answer the plaintiffs interrogatories. Rather, the record shows that the defendant answered the interrogatories, and nothing in the record demonstrates how the Supreme Court or the plaintiff found those answers deficient. Therefore, the Supreme Court improvidently exercised its discretion in granting the plaintiffs motion, inter alia, to strike the defendant’s answer (see Centerport Ins. Agency v Atlantic Fabricators of Rhode Is., 277 AD2d 414, 415 [2000]; DeCintio v Ahmed, supra; Vancott v Great Atl. & Pac. Tea Co., supra; Brennan v McCarthy, supra). Florio, J.P., Friedmann, Adams and Crane, JJ., concur.