A court may, inter alia, issue an order “striking out pleadings or . . . rendering a judgment by default” as a sanction against a party who “refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed” (CPLR 3126 [3]). “To invoke the drastic remedy of striking an answer, it must be shown that a defendant’s failure to comply with a disclosure order was the result of willful and contumacious conduct” (Maignan v Nahar, 37 AD3d 557 [2007]; see Espinal v City of New York, 264 AD2d 806 [1999]).
Here, in opposition to the plaintiff’s motion to strike the answer of the defendant Delawar Hossain (hereinafter Delawar), defense counsel asserted that her office was unable to locate
However, the court erred in striking the answer insofar as interposed by the defendant Madani Masjid, Inc. (hereinafter MMI). The plaintiff proffered no evidence that MMI exercised control over Delawar and thus was responsible for Delawar’s failure to appear for his deposition (see Tolz v Valente, 39 AD3d 737, 738 [2007]; Moriates v Powertest Petroleum Co., 114 AD2d 888, 890 [1985]). Therefore, MMI should not have been sanctioned for failing to produce a party over which it had no control (see Tolz v Valente, 39 AD3d 737, 738 [2007], supra; Moriates v Powertest Petroleum Co., 114 AD2d 888, 890 [1985], supra). Accordingly, that branch of the plaintiffs motion which was, in effect, for leave to enter a default judgment against MMI also should not have been granted. Prudenti, P.J., Skelos, Miller, Covello and McCarthy, JJ., concur.