Opinion
February 17, 1994
Appeal from the Supreme Court, Nassau County (Eli Wager, J.).
CPLR 3126, entitled "Penalties for refusal to comply with order or to disclose", grants the court, in the exercise of its discretion, wide latitude in framing appropriate relief where a party "refuses to obey an order for disclosure or wilfully fails to disclose information", and empowers the court to "make such orders with regard to the failure or refusal as are just", including, but not limited to, striking out pleadings or parts thereof, deeming the issues to which the information is relevant to be resolved for purposes of the action, or precluding the disobedient party from supporting or opposing designated claims or defenses.
It is therefore axiomatic that the imposition of CPLR 3126 sanctions is within the sound discretion of the court and, absent an abuse of that discretion, will not be disturbed on appeal (see, Matter of Cullen, 143 A.D.2d 746).
The IAS Court did not abuse its discretion in refusing to strike defendant Buckingham's answer pursuant to CPLR 3126, and, instead, imposing a sanction precluding defendant Buckingham from testifying or offering evidence at trial with respect to certain requested and court-ordered documents which Buckingham failed to produce, where, as here, the moving affidavit failed to set forth the type of dilatory and obstructive conduct which justified striking a pleading by conclusively showing that Buckingham's default was clearly willful and contumacious or due to bad faith (Cinelli v. Radcliffe, 35 A.D.2d 829), and the opposition papers indicate that Buckingham's failure to produce the previously available documents subject to disclosure resulted from its destruction of the actual documentation sought in the course of cessation of operations (cf., Corona v. A-B-C Packaging Mach. Corp., 129 A.D.2d 762; Ferraro v. Koncal Assocs., 97 A.D.2d 429).
We have reviewed the parties' remaining arguments and find them to be without merit.
Concur — Carro, J.P., Wallach, Ross, Rubin and Williams, JJ.