Fitterer v. Gus Riedlinger's Towing Service, Inc. , 707 N.Y.S.2d 327 ( 2000 )

—In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Suffolk County (Seidell, J.), dated March 23, 1999, which denied that branch of their motion which was for summary judgment dismissing the complaint on the ground that the plaintiff Ronald J. Fitterer did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), and granted that branch of their motion which was to dismiss the complaint pursuant to CPLR 3126 based on the plaintiffs’ failure to comply with court-ordered discovery or to preclude the plaintiffs pursuant to CPLR 3124 and 3126 from offering any evidence as to items numbered “Sixth”, “Ninth”, “Tenth”, and “Eleventh” in the defendants’ demand for a bill of particulars only to the extent of directing Ronald J. Fitterer to submit to an independent medical examination on 10 days prior written notice within 45 days after receipt of a copy of the order with notice of entry.

Ordered that the order is affirmed, with costs.

We agree with the Supreme Court that there is an issue of fact as to whether the plaintiff Ronald J. Fitterer sustained a serious injury within the meaning of Insurance Law § 5102 (d) (see, Moore v Tappen, 242 AD2d 526). In addition, the nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter within the discretion of the court, and the drastic remedies of striking a pleading or preclusion should only be invoked upon a showing of conduct which is willful, contumacious, or in bad faith (see, Garnett v Hudson Rent A Car, 258 AD2d 559; Maillard v Maillard, 243 AD2d 448; Kubacka v Town of N. Hempstead, 240 AD2d 374). The Supreme Court providently exercised its discretion in granting that branch of the defendants’ motion which was to dismiss the complaint or to preclude the plaintiffs from offering certain evidence only to the extent of directing the plaintiff Ronald J. Fitterer to submit to an independent medical examination. Mangano, P. J., Santucci, Krausman, Florio and Schmidt, JJ., concur.