Opinion
March 25, 1996
Appeal from the Supreme Court, Nassau County (DiNoto, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is denied, and the answer is reinstated, on condition that the defendant pay the plaintiffs $1,000 as and for attorney's fees within 30 days after service upon it of a copy of this decision and order with notice of entry; and it is further,
Ordered that, in the event that condition is not complied with, the order is affirmed insofar as appealed from, with costs.
CPLR 3126 allows the court to "make such orders * * * as are just", including an order striking out pleadings when a party willfully disobeys a discovery order. However, "[t]he drastic sanction of unconditionally striking an answer * * * should not be invoked unless the resisting party's default is clearly shown to be deliberate and contumacious" ( Nudelman v New York City Tr. Auth., 172 A.D.2d 503; see, Tschernia v Embanque Capital Corp., 161 A.D.2d 585, 586-587; Read v Dickson, 150 A.D.2d 543, 544). On this record, the plaintiffs failed to clearly show that the defendant willfully and contumaciously refused to comply with the court's order dated January 13, 1995, directing it to produce a witness with knowledge of certain facts. Therefore, the court erred in striking the defendant's answer ( see, Williams v Bryant, 196 A.D.2d 815, 816; Nudelman v New York City Tr. Auth., supra).
However, in view of delay in discovery caused by the defendant's failure to produce the witness in question, we are of the view that a $1,000 sanction against the defendant is warranted. Balletta, J.P., O'Brien, Ritter, Pizzuto and Altman, JJ., concur.