The drastic remedy of striking a party's pleading for failure to comply with a discovery order is appropriate only where the moving party conclusively demonstrates that the non-disclosure was willful, contumacious, or in bad-faith. Willful and contumacious conduct may be shown through failure to comply with court orders, in the absence of adequate excuses. Although it generally is within the discretion of the motion court to determine the appropriate penalty, the Appellate Division is vested with its own discretion and corresponding power to substitute its discretion for the trial court's, even in the absence of abuse of discretion.
Ochoa v. C.I. Lobster Corp., NY Slip Op 03274 (1st Dep't May 26, 2026)
