Padovano v. Teddy's Realty Associates, Ltd.

31 A.D.3d 514, 817 N.Y.S.2d 539

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 11, 2006
• Status: Published

Opinion

In two related actions to recover damages for personal injuries, etc., which were joined for trial, the plaintiffs appeal from so much of an order of the Supreme Court, Richmond County (Giacobbe, J.), dated June 27, 2005, as granted their motion pursuant to CPLR 3126 to strike the answer of the defendant Roberta Arena in action No. 1 only to the extent of conditionally precluding that defendant from offering testimony or other evidence at trial, unless certain documents and information or an affidavit regarding the existence of the documents and information were provided to the plaintiffs by that defendant, and otherwise denied the motion.

Ordered that the order is affirmed insofar as appealed from, with costs.

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the court (see CPLR 3126; Reyes v Vanderbilt, 303 AD2d 391 [2003]; Solomon v Horie Karate Dojo, 283 AD2d 480, 480-481 [2001]). Under the circumstances of this case, the Supreme Court providently exercised its discretion in granting the plaintiffs’ motion to strike the answer of the defendant Roberta Arena only to the extent of conditionally precluding that defendant from offering testimony or other evidence at trial, unless certain documents and information or an affidavit regarding the existence of the documents and information were provided to the plaintiffs by that defendant, and otherwise denying the motion. Adams, J.P., Goldstein, Fisher and Lifson, JJ., concur.