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  • Posted on: Apr 3 2020

Once an action is commenced, litigants have numerous discovery devices at their fingertips to help flesh-out facts to prove, or defend against, asserted claims.  Sometimes, however, a potential litigant believes that a viable claim exists but, for one or more reasons, has insufficient information to bring a claim.  The answer is provided by CPLR 3102 (c), which permits disclosure “before an action is commenced, … to aid in bringing an action, to preserve information or to aid in arbitration…but only by court order.”  This Blog previously addressed CPLR 3102 (c) [HERE].

Pre-action disclosure in aid of bringing a claim is appropriate “only where a petitioner demonstrates that it has a meritorious cause of action and that the information sought is material and necessary to the actionable wrong.”  Sandals Resorts Int’l Ltd. v. Google, Inc., 86 A.D.3d 32, 38 (1st Dep’t 2011) (citation, internal quotation marks and brackets omitted).  CPLR 3102 (c) cannot be used by a potential plaintiff to assist in determining whether a cause of action exists.  Ero v. Graystone Materials, Inc., 252 A.D.2d 812, 814 (3rd Dep’t 1998) (citation omitted).  Where a petitioner already possesses sufficient information to frame a complaint but brought a proceeding under CPLR 3102 (c) to “explore alternative theories of liability” the granting of its petition would be improper.  Western Inv. LLC v. Georgeson Shareholder Securities Corp., 43 A.D. 3d 333 (1st Dep’t 2007) (citation omitted).  

New York courts have explained that limitations on the use of pre-action disclosure are “designed to prevent the initiation of troublesome and expensive procedures, based upon a mere suspicion, which may annoy and intrude upon an innocent party.” Matter of Stewart v. New York City Transit Auth., 112 A.D.2d 939, 940 (2d Dept. 1985) (citation and internal quotation marks omitted). However, where “the facts alleged state a cause of action, the protection of a party’s affairs is no longer the primary consideration and an examination to determine the identities of the parties and what form or forms the action should take is appropriate.” Id. (citation and internal quotation marks omitted).

Pre-action disclosure is also available to ascertain the identity of potential defendant.  Thus, in Alexander v. Spanierman Gallery, LLC, 33 A.D.3d 411 (1st Dep’t 2006), the Court permitted disclosure of the purchaser of stolen artwork so that plaintiff could commence a replevin action.  The procedure may also be used to preserve evidence.  Holtzman v. Manhattan and Bronx Surface Transit Operating Authority, 271 A.D.2d 346, 347 (1st Dep’t 2000).  For example, a court may order a pre-action deposition where it is necessary to “preserve testimony” due to the ill-health of a potential claimant/plaintiff (Matter of Davis, 178 Misc. 2d 65, 66 (N.Y. Ct. Claims 1998)), or to prevent “a potential defendant or other person from disposing of physical evidence” (Lemon Juice v. Twitter, Inc., 44 Misc. 3d 1225(A) at *5).

The First Department addressed these issues in Delgrange v. The RealReal, Inc.(April 2, 2020).  The petitioner in Delgrange was a collector of rare and unique clothing – much of which was from the collections of designer Marc Jacobs.  Respondent runs an on-line consignment website.  Petitioner frequently monitored respondent’s website looking to find additional Marc Jacobs clothing and noticed that numerous items similar to those already owned by her were being posted for sale.  This caused petitioner concern, which, in turn, caused her to inventory her collection.  This inventory revealed that numerous missing items from her collection appeared to be offered for sale on respondent’s website.  Petitioner purchased some of the suspicious items and, thereby, confirmed that some of the items being offered for sale on respondent’s website were hers.  All told, petitioner confirmed that 153 items offered for sale were stolen from her collection.  

Petitioner wanted to bring a conversion claim against the unknown that stole clothing from her collection.  Accordingly, petitioner brought a petition pursuant to CPLR 3102 (c) against respondent to ascertain the identity of the individual that consigned the stolen clothing.  In granting the relief sought by the petition, the Court determined that petitioner “demonstrated a meritorious cause of action for conversion” and that the discovery sought from respondent, “the identity of the people who posted – is material and necessary to the prosecution of her posited cause of action.”

The Court also noted that the “Supreme Court providently exercised in shaping and executing the confidentiality order governing disclosure by [respondent]” so as to address respondent’s concerns about the manner in which petitioner could contact respondent’s customers. 

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