Defendants appeal from an order (Ellen Gesmer, J.), dated July 1, 2005, which granted plaintiff's motion to strike defendants' answer for failure to comply with court-ordered discovery and spoliation of evidence.

PER CURIAM:

Order (Ellen Gesmer, J.), dated July 1, 2005, affirmed, with $10 costs.

A court may strike an answer for noncompliance with a discovery order where a moving party makes "a clear showing that the failure to comply is willful, contumacious or in bad faith" (Palmenta v Columbia Univ., 266 AD2d 90, 91 [1999]). Here, the complete lack of a response to any discovery demands by defendant after three compliance conference orders "constituted precisely the sort of dilatory and obstructive, and thus contumacious, conduct warranting the striking of their answers" (Kutner v Feiden, Dweck & Sladkus, 223 AD2d 488, 489 [1996], lv denied 88 NY2d 802 [1996]; accord Varvitsiotes v Pierre, 260 AD2d 297 [1999]). Defendant's failure to advise the court and plaintiff, prior to the motion to strike, that the documents were unavailable or to proffer any excuse for failure to comply with the court-ordered discovery, even if not constituting spoliation of evidence, was indicative of willful and evasive conduct with respect to plaintiff's discovery rights. Under these circumstances, the sanction imposed, although severe, was appropriate (see Sage Realty Corp. V Proskauer Rose LLP., 275 AD2d 11, 17-18 [2000]; Austin v Coin Services Corp., 234 AD2d 155 [1996]). This constitutes the decision and order of the court.
I concurI concurI concur [*2]
Decision Date: December 15, 2005