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JOANNA LONES, Respondent, v. STEVE LAMPEAS, et al., Appellants.

DECISION ORDER

ORDERED that the appeal from the order dated May 14, 1999, is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order dated November 16, 1998, is affirmed insofar as appealed from; and it is further,

ORDERED that the respondent is awarded one bill of costs.

While the nature and degree of the penalty to be imposed pursuant to CPLR 3216 N.Y.CPLR is a matter of discretion, the drastic remedy of preclusion, which results in the striking of a pleading, should be invoked only upon a clear showing that the noncomplying party's failure to provide discovery was willful, deliberate, and contumacious (see, Kihl v. Pfeffer, N.Y.2d [Nov. 30, 1999];Maillard v. Maillard, 243 A.D.2d 448; Garcia v. Kraniotakis, 232 A.D.2d 369; Vatel v. City of New York, 208 A.D.2d 524). Here, given the conduct of the appellants, the Supreme Court providently exercised its discretion in striking their answer and precluding them from testifying at trial.

RITTER, J.P., SULLIVAN, S. MILLER, LUCIANO, and H. MILLER, JJ., concur.

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LONES v. LAMPEAS
(Mar 17, 2000)