Rich & Rich Trading Co. v. Theodore, Ltd.

*308It is well settled that the harsh remedy of striking a pleading should not be employed without a clear showing of deliberate and willful refusal to disclose (Washington v Alco Auto Sales, 199 AD2d 165), i.e., "where the refusal to obey an order for disclosure or failure to disclose pursuant to notice is clearly contumacious or deliberate” (Berman v Szpilzinger, 180 AD2d 612). The penalty to be imposed for such a refusal or failure is a matter within the sound discretion of the court (supra). Here, it was an improvident exercise of discretion to dismiss the plaintiffs complaint for failure to…