Daniel Padovano v Teddy's Realty Associates, Ltd.

Padovano v Teddy's Realty Assoc., Ltd. 2006 NY Slip Op 05604 [31 AD3d 514] July 11, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 20, 2006

Daniel Padovano et al., Appellants,
v
Teddy's Realty Associates, Ltd., et al., Defendants, and Roberta Arena, Respondent. (Action No. 1.) Daniel Padovano et al., Plaintiffs, v Desai Chia, Inc., et al., Defendants. (And a Third-Party Action.) (Action No. 2.)

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In two related actions to recover damages for personal injuries, etc., which were joined for trial, the plaintiffs appeal from so much of an order of the Supreme Court, Richmond County (Giacobbe, J.), dated June 27, 2005, as granted their motion pursuant to CPLR 3126 to strike the answer of the defendant Roberta Arena in action No. 1 only to the extent of conditionally precluding that defendant from offering testimony or other evidence at trial, unless certain documents and information or an affidavit regarding the existence of the documents and information were provided to the plaintiffs by that defendant, and otherwise denied the motion.

Ordered that the order is affirmed insofar as appealed from, with costs. [*2]

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the court (see CPLR 3126; Reyes v Vanderbilt, 303 AD2d 391 [2003]; Solomon v Horie Karate Dojo, 283 AD2d 480, 480-481 [2001]). Under the circumstances of this case, the Supreme Court providently exercised its discretion in granting the plaintiffs' motion to strike the answer of the defendant Roberta Arena only to the extent of conditionally precluding that defendant from offering testimony or other evidence at trial, unless certain documents and information or an affidavit regarding the existence of the documents and information were provided to the plaintiffs by that defendant, and otherwise denying the motion. Adams, J.P., Goldstein, Fisher and Lifson, JJ., concur.