Krajca v. Panza

Appellate Division of the Supreme Court of New York

Krajca v. Panza

262 A.D.2d 612, 693 N.Y.S.2d 185, 1999 N.Y. App. Div. LEXIS 7650

Appellate Division of the Supreme Court of the State of New York·Decided June 28, 1999·Published

Opinion

—In an action to recover on a guaranty, the plaintiff appeals from an order of the Supreme Court, Nassau County (Lockman, J.), dated August 3, 1998, which granted that branch of the defendant’s motion which was to dismiss the complaint pursuant to CPLR 3126 for failure to provide discovery.

Ordered that the order is affirmed, with costs.

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter within the discretion of the trial court (see, Associated Mut. Ins. Co. v Dyland Tavern, 105 AD2d 892). While the drastic remedy of striking a pleading for failure to disclose should not be imposed unless the party’s failure to comply was the result of willful, deliberate, and contumacious conduct or its equivalent (see, Beard v Peconic Foam Insulation Corp., 149 AD2d 555), the record supports the Supreme Court’s conclusion that the plaintiff’s failure in this case warranted dismissal of the complaint. S. Miller, J. P., Sullivan, Friedmann, Luciano and Feuerstein, JJ., concur.

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—In an action to recover on a guaranty, the plaintiff appeals from an order of the Supreme Court, Nassau County (Lockman, J.), dated August 3, 1998, which granted that branch of the defendant’s motion which was to dismiss the complaint pursuant to CPLR 3126 for failure to provide discovery.

Ordered that the order is affirmed, with costs.

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter within the discretion of the trial court (see, Associated Mut. Ins. Co. v Dyland Tavern, 105 AD2d 892). While the drastic remedy of striking a pleading for failure to disclose should not be imposed unless the party’s failure to comply was the result of willful, deliberate, and contumacious conduct or its equivalent (see, Beard v Peconic Foam Insulation Corp., 149 AD2d 555), the record supports the Supreme Court’s conclusion that the plaintiff’s failure in this case warranted dismissal of the complaint. S. Miller, J. P., Sullivan, Friedmann, Luciano and Feuerstein, JJ., concur.

Krajca v. Panza, 262 A.D.2d 612, 693 N.Y.S.2d 185, 1999 N.Y. App. Div. LEXIS 7650 (N.Y. Ct. App. 1999).

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