Estaba v. Quow

to CPLR 3126 is a matter within the discretion of the trial court (see Kihl v Pfeffer, 94 NY2d 118 , 122-123 [1999]; Commisso v Orshan, 85 AD3d 845 [2011]; Rock City Sound, Inc. v Bashian & Farber, LLP, 83 AD3d 685 , 686 [2011]). The drastic remedy of striking an answer is inappropriate absent a clear showing that the defendant’s failure to comply with discovery demands was willful and contumacious (see Orgel v Stewart Tit. Ins. Co., 91 AD3d 922 , 923 [2012]; Commisso v Orshan, 85 AD3d at 845 ; Rock City Sound, Inc. v Bashian & Farber, LLP, 83 AD3d at 686 ). Willful and contumacious conduct may be inferred from a party’s repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply or a failure to comply with court-ordered discovery over an extended period of time (see Orgel v Stewart Tit. Ins. Co., 91 AD3d at 924 ; Commisso v Orshan, 85 AD 3d at 845 ; Rock City Sound, Inc. v Bashian & Farber, LLP, 83 AD3d at 686-687 ). Here, the appellants’ failure, over a period of one year and nine months, to comply with five court orders directing them to appear for a deposition, coupled with a lack of a reasonable excuse for that failure, supports an inference that their conduct was willful and contumacious (see Orgel v Stewart Tit. Ins. Co., 91 AD3d at 924 ; Rock City Sound, Inc. v Bashian & Farber, LLP, 83 AD3d at 686-687 ; Commisso v Orshan, 85 AD3d at 845 ; Morgenstern v Jeffsam Corp., 78 AD3d 913 , 914 [2010]; Giano v Ioannou, 78 AD3d 768 , 771 [2010]). Accordingly, the Supreme Court providently exercised its discretion in granting the plaintiffs motion to strike the appellants’ answer. Skelos, J.P., Chambers, Sgroi and Hinds-Radix, JJ., concur.