Matter of Jendroska (Bridge Zale Constr. Corp.)

[*1] Matter of Jendroska (Bridge Zale Constr. Corp.) 2012 NY Slip Op 52310(U) Decided on November 21, 2012 Supreme Court, Queens County Siegal, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 21, 2012
Supreme Court, Queens County

In the Matter of the Application of Jedrzej Jendroska, Petitioner, for leave to Obtain Pre-Action Disclosure Pursuant to CPLR 3102(c) Bridge Zale Construction Corp., Respondent.



13527/12

Bernice Daun Siegal, J.

The following papers numbered 1 to 12 read on this motion for an order pursuant to CPLR 3202(c) granting Petitioner leave to obtain pre-action disclosure from the Respondent.

PAPERS

NUMBERED

Notice of Motion - Affidavits-Exhibits..................................1 - 4

Affirmation in Opposition......................................................5 - 9

Reply......................................................................................10 - 12

Upon the foregoing papers, it is hereby ordered that the motion is resolved as follows:

Petitioner Jedrzej Jendroska moves for an order pursuant to CPLR §3102(c) granting Petitioner leave to obtain pre-action disclosure from Respondent.

Facts

This is an action for personal injuries that Petitioner allegedly sustained as a result of an accident occurring on July 15, 2010, at approximately 4:00 PM. Petitioner was riding his motorcycle on Green Street between Franklin Street and Manhattan Avenue in Brooklyn, New York, when the front wheel of his motorcycle allegedly hit a trail of black foreign substance in the road leading to his alleged accident with another vehicle. Petitioner is paralyzed from the chest down as a result of the accident.

Contentions

Petitioner contends that pre-discovery is needed to determine whether respondent Bridge Zale Construction Corp, a general contractor involved in construction project at a nearby building located [*2]on 151 Green Street at the time of accident, is a potential party to this litigation and whether respondent caused the inherently dangerous presence of a foreign substance on the road, which in turn, petitioner further contends was one of the causative factors of the accident.

In opposition, respondent contends that petitioner does not proffer any evidence, such as a police report, accident report, medical records, or witness statements, to show that alleged accident occurred or to support that petitioner has a meritorious claim; that the 151 Green Street construction project, located approximately 150 feet from where alleged accident occurred, had nothing to do with any work in the roadway; and that any discovery being sought from respondent is not material and unnecessary to the actionable wrong because respondent did not own, operate, or control the area where petitioner's alleged accident occurred and because respondent did not do any work in that area.

Petitioner in its reply contends that petitioner is entitled to pre-action disclosure since petitioner fulfills both bases: petitioner has a meritorious claim and the information being sought is material and necessary to the actionable wrong. Petitioner further contends respondent's claim of lacking supporting evidence is in error because petitioner previously provided respondent with the police report and Summons and Verified Complaint by email on August 10, 2012. In addition, petitioner has attached the fire department report, police accident report, and an excerpt from petitioner's medical records in its reply to verify petitioner's alleged accident and injuries.

Petitioner's order to show cause is denied in its entirety as more fully set forth below.

Discussion

CPLR §3102(c) provides, in pertinent part, that: "[b]efore an action is commenced, disclosure to aid in bringing an action, to preserve information . . . , may be obtained, but only by court order." Pre-action disclosure can be used "to enable the plaintiff to frame a complaint," "to preserve evidence for a forthcoming lawsuit," and to "ascertain[] the identities of prospective defendants." (Bumpus v. New York City Transit Authority, 66 AD3d 26, 33 [2d Dep't 2009]; see also Stewart v. New York City Transit Authority, 112 AD2d 939, 940 [2d Dep't 1985].) Here, petitioner is requesting pre-action disclosure to determine whether respondent is a potential defendant to this action and to frame a complaint against respondent.

In addition, petitioner is requesting this pre-action disclosure to decipher what work was being done at the time of the accident to determine whether respondent was in fact negligent in its work and, in turn, this negligence contributed to petitioner's accident. However, pre-action disclosure cannot be "used to ascertain whether a prospective plaintiff has a cause of action worth pursuing"; in essence, pre-action disclosure cannot be used for sole purpose "to explore alternative theories of liability." (Uddin v. New York City Transit Authority, 27 AD3d 265, 266 [1st Dep't 2006]; Holzman v. Manhattan and Bronx Surface Transit Operating Authority, 271 AD2d 346, 348 [1st Dep't 2000; see also Thomas, 74 AD3d at 465].) "Pre-action discovery is not permissible as a fishing expedition to ascertain whether a cause of action exists'." (Bishop v. Stevenson Commons Assocs., 74 AD3d 640, 641 [1st Dep't 2010] lv. denied 16 NY3d 702 [2011], quoting Liberty Imports v. Bourguet, 146 AD2d 535, 536 [1st Dep't 1989].)Here, petitioner is seeking pre-action disclosure to determine whether it has a negligence claim against respondent; and this is an improper basis for invoking CPLR §3102(c).

Furthermore, to obtain an order for pre-action disclosure, the one seeking the application must first "show the existence of a prima facie cause of action" or "a meritorious cause of action." (Matter of Toal v. Staten Island University Hospital, 300 AD2d 592, 593 [2d Dep't 2002]; Holzman [*3]v. Manhattan and Bronx Surface Transit Operating Authority, 271 AD2d 346, 347 [1st Dep't 2000]; Matter of Ero v. Graystone Materials, Inc., 252 AD2d 812, 813—14 [3d Dep't 1998].) To determine "whether the petitioner has demonstrated a prima facie case, the evidence presented must be considered in a light most favorable to the petitioner"; and "the determination of whether a party has demonstrated merit lies in the sound discretion of the trial court." (Bishop, 74 AD3d at 641; see also In Matter of Peters v. Sotherby's Inc., 34 AD3d 29, 34 [1st Dep't 2006], lv. denied 8 NY3d 809 [2007]; Matter of Toal, 300 AD2d at 593; Matter of Ero, 252 AD2d at 814.) Additionally, movant must establish "that the information sought is material and necessary to the actionable wrong." (Sandals Resorts International Limited, 86 AD3d at 38; Thomas, 74 AD3d at 465; Uddin, 27 AD3d at 266; Holzman, 271 AD2d at 347.)

Here, for this court to grant petitioner pre-action disclosure, petitioner needs to first show that he has a meritorious claim against respondent on the basis respondent's negligence. The First Department in Holzman held that petitioner did not meet his burden since he failed to allege any facts supporting his claim that respondents were negligent and that this negligence caused his injury. ( Holzman, 271 AD2d at 347—48.) Here, petitioner claims what caused him to fall is a trail of black foreign substance in the road; however, petitioner has not alleged how this trail of black foreign substance ended up in the road, whether respondent working on a project about 150 feet away caused this trail of black foreign substance in the road, and if respondents did, whether respondent's negligence was the cause of the presence of this substance on the road. The only piece of information that petitioner alleges is that respondent's construction was the only construction project occurring in the vicinity of the accident. Accordingly, as petitioner has failed to allege any facts supporting his bare claim that respondents were negligent and that this negligence caused his injury the court is constrained to deny the application. . (See Holzman v Manhattan & Bronx Surface Tr. Operating Auth., 271 AD2d 346, 347 [2nd Dept 2000].) Petitioner is improperly attempting to use CPLR §3102(c) to ascertain whether facts supporting a claim actually exist. (See Edens v. State, 259 AD2d 729 [2nd Dept 1999].)

As petitioner has failed to provide a framework of a meritorious claim against respondent, the court finds through this within motion, petitioner is attempting to use CPLR §3102(c) as a fishing expedition and, therefore, there is no need to address whether information sought is material and necessary to the actionable wrong.

Conclusion

For the reasons set forth above, petition's order to show cause pursuant to CPLR §3102(c) is denied in its entirety.

This constitutes the decision and order of this court.

Dated: November 21 , 2012_______________________

Bernice D. Siegal, J. S. C.

OCA e-submission: no Judge E-Mail