How often do cases explode because of discovery abuses?  We do not have a firm answer, but much of the legal malpractice litigation world arises from discovery abuses.  Here, in Rock City Sound, Inc. v Bashian & Farber, LLP ;2011 NY Slip Op 02861 ;Decided on April 5, 2011 ;Appellate Division, Second Department we see a law firm being punished as a defendant in a legal malpractice case based upon its own refusal to provide records, in a discovery abuse scenario.

"In the order appealed from, the Supreme Court, inter alia, granted that branch of the plaintiff’s renewed motion pursuant to CPLR 3126 which was to strike the defendants’ answer. The defendants appeal, and we affirm the order insofar as appealed from.

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 rests within the discretion of the motion court (see Raville v Elnomany, 76 AD3d 520, 521; Negro v St. Charles Hosp. & Rehabilitation Ctr., 44 AD3d 727, 728; 1523 Real Estate, Inc. v East Atl. Props., LLC, 41 AD3d 567, 568; Ordonez v Guerra, 295 AD2d 325, 326). However, the "drastic remedy" (Friedman, Harfenist, Langer & Kraut v Rosenthal, 79 AD3d 798, 801) of striking a pleading pursuant to CPLR 3126 should not be imposed unless the failure to comply with discovery demands or orders is clearly willful and contumacious (see Lomax v Rochdale Vil. Inc., 76 AD3d 999, 999; [*2]Moray v City of Yonkers, 76 AD3d 618, 619; Cobenas v Ginsburg Dev. Cos. LLC., 74 AD3d 1269, 1270; Xiao Yang Chen v Fischer, 73 AD3d 1167). " Willful and contumacious conduct may be inferred from a party’s repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply’" (Friedman, Harfenist, Langer & Kraut v Rosenthal, 79 AD3d 798, 800, quoting Savin v Brooklyn Mar. Park Dev. Corp., 61 AD3d 954, 954-955), " or a failure to comply with court-ordered discovery over an extended period of time’" (Friedman, Harfenist, Langer & Kraut v Rosenthal, 79 AD3d 798, 800, quoting Prappas v Papadatos, 38 AD3d 871, 872; see Russell v B & B Indus., 309 AD2d 914, 915; Penafiel v Puretz, 298 AD2d 446, 447).

It is clear from this record that the defendants willfully and contumaciously defied discovery orders of the Supreme Court by repeatedly failing to submit files requested by the plaintiff (see Russell v B & B Indus., 309 AD2d at 915; Nicoletti v Ozram Transp., 286 AD2d 719, 719-720; Penafiel v Puretz, 298 AD2d at 447). Accordingly, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff’s renewed motion which was to strike the defendants’ answer (see Nicoletti v Ozram Transp., 286 AD2d at 719-720; Penafiel v Puretz, 298 AD2d at 447). "