The motion court properly exercised its discretion in declining to impose the harsh sanctions reserved for spoliation of evidence (see,Smith v. New York City Health Hosps. Corp., 284 A.D.2d 121, lv denied 97 N.Y.2d 607), since the required element of an unfairly gained advantage (see, Tawedros v. St. Vincent's Hosp., 281 A.D.2d 184) was not sufficiently demonstrated. While the discovery noncompliance by defendant City cannot be found to have been of such nature that the City's answer should be stricken or that a comparably harsh sanction pursuant to CPLR 3126 should be imposed at this time (see, Catarine v. Beth Israel Med. Ctr., 290 A.D.2d 213), we nevertheless find that the imposition of a $2500 penalty is warranted in view of the lengthy and continuing untenable delay. Further delay, other than a brief, reasonable period after service of a copy of this order with notice of entry upon defendant City, in producing either any remaining items and witnesses directed by the court in the October 12, 2000 and the November 1, 2001 orders, or in providing a cogent sworn affidavit explanation for a failure to produce, would result in a compelling argument for plaintiffs obtaining enforcement of the motion court's conditional order of preclusion.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.