In an action to recover damages for injury to property, the plaintiffs appeal from (1) an order of the Supreme Court, Suffolk County (McCarthy, J.), dated March 21, 1986, which dismissed the complaint insofar as asserted against the defendants Peconic Foam Insulation Corp., Homecrafts, Inc. and Luxaire, Inc. pursuant to CPLR 3126, and (2) so much of an order of the same court, dated May 21, 1986, as, upon reargument, adhered to the original determination.
Ordered that the appeal from the order dated March 21, 1986 is dismissed, without costs or disbursements. That order was superseded by the order dated May 21, 1986, made upon reargument; and it is further,
Ordered that the order dated May 21, 1986 is affirmed insofar as appealed from; and it is further,
Ordered that the respondents are awarded one bill of costs.
The plaintiffs commenced the instant action in 1978, seek
It is well established that in order to invoke the drastic remedy of striking a pleading pursuant to CPLR 3126 for noncompliance with a court order for disclosure, the court must determine that the parties’ failure to comply was the result of willful, deliberate and contumacious conduct or its equivalent (see, Scharlack v Richmond Mem. Hosp., 127 AD2d 580; Horowitz v Camp Cedarhurst & Town & Country Day School, 119 AD2d 548; Battaglia v Hofmeister, 100 AD2d 833). The record before this court amply supports the determination of the Supreme Court that the plaintiffs repeatedly and without reasonable explanation failed to comply with the court-ordered discovery. The evidence demonstrates that the plaintiffs had access to the entire set of photographs in question but inexcusably failed to turn them over to the defendants despite numerous discovery requests and court orders directing their production. In view of the circumstances, we conclude that the Supreme Court did not improvidently exercise its discretion in invoking the sanction of dismissal of the complaint (see, Zletz v Wetanson, 67 NY2d 711).
