In this case. I'm sure there are exceptions. But generally, substantial compliance contraindicates an argument that a party's conduct was willful and contumacious.
CPLR § 3126 Penalties for refusal to comply with order or to disclose
Pursuant to CPLR 3126, "[a] court may strike an answer as a sanction if a defendant refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed'" (Mazza v Seneca, 72 AD3d 754, 754, quoting CPLR 3126). While the nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the trial court (see CPLR 3126[3];Kihl v Pfeffer, 94 NY2d 118, 122-123; Bernal v Singh, 72 AD3d 716, 717), the drastic remedy of striking a pleading is not appropriate absent a clear showing that the failure to comply with discovery demands is willful or contumacious (see CPLR 3126[3]; Moray v City of Yonkers, 76 AD3d 618).
Here, there was no clear showing that the defendants' conduct was willful or contumacious (see Dank v Sears Holding Mgt. Corp., 69 AD3d 557). Rather, the defendants substantially complied with their discovery obligations and, where demanded documents could not be found, the defendants provided affidavits showing that good faith efforts had been made to locate the documents (see Argo v Queens Surface Corp., 58 AD3d 656, 656-657; Maffai v County of Suffolk, 36 AD3d 765, 766; Sagiv v Gamache, 26 AD3d 368, 369). Accordingly, it was an improvident exercise of discretion to strike the answer.
Motions to strike, generally, are just an easy way to bill or aggravate the other party, serving no useful purpose.
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