Felipe v. 2820 West 36th Street Realty Corp. , 775 N.Y.S.2d 572 ( 2004 )

In an action for specific performance of a contract for the sale of real property, the plaintiffs appeal from an order of the Supreme Court, Kings County (M. Garson, J.), dated July 1, 2003, which, inter alia, granted the defendant’s motion pursuant to CPLR 3126 to dismiss the complaint and to vacate the notice of pendency against the subject premises, and denied their cross motion for summary judgment.

Ordered that the order is modified, on the law and as a matter of discretion, by deleting the provision thereof granting the motion to dismiss the complaint and to vacate the notice of pendency, and substituting therefor a provision denying the motion; as so modified, the order is affirmed, with costs to the plaintiffs.

While the nature and degree of the penalty to be imposed pursuant to CPLR 3126 is generally a matter left to the sound discretion of the court, the penalty of dismissing a complaint for failure to disclose is extreme and should only be levied where the failure has been willful or contumacious (see Avenue C Constr. v Gassner, 306 AD2d 506 [2003]; DeCintio v Ahmed, 276 AD2d 463, 464 [2000]). Where, as here, the record does not support the conclusion that the plaintiffs willfully or contumaciously refused to respond to the defendant’s discovery demands, the Supreme Court improvidently exercised its discretion in granting the defendant’s motion (see Avenue C Constr. v Gassner, supra; Centerport Ins. Agency v Atlantic Fabricators of Rhode Is., 277 AD2d 414, 415 [2000]).

Contrary to the plaintiffs’ contentions, the Supreme Court properly denied their cross motion for summary judgment. Santucci, J.P., S. Miller, Schmidt and Townes, JJ., concur.