CPLR 3126

The Second Department granted defendant's motion to strike a pleading, pursuant to CPLR 3126(3), in McArthur v. New York City Housing Authority, which was decided on February 5, 2008. The court began by noting that the striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands is willful and contumacious. The willful and contumacious character of a party's conduct can be inferred from the party's repeated failures to respond to demands and/or to comply with discovery orders.

Practice point: Here, the court found willful and contumacious character in plaintiff's repeated failures to comply with the court's discovery orders to appear for a deposition and an independent medical examination, and to provide certain disclosure, including authorizations to obtain information and medical and employment records, without an adequate excuse.