¶1—In an action to recover damages for medical malpractice, the defendant Hady G. Oghia appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Levine, J.), dated April 13, 1998, as only conditionally granted his motion pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against him.
¶2Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
¶3The nature and degree of the penalty to be imposed on a motion pursuant to CPLR 3126 is a matter of discretion with the court (see, Herrera v City of New York, 238 AD2d 475). Here, the Supreme Court did not improvidently exercise its discretion in only conditionally granting the appellant’s motion pursuant to CPLR 3126. Santucci, J. P., Joy, Feuerstein and Schmidt, JJ., concur.