Mariner Pac., Ltd. v Sterling Biotech Ltd.

Mariner Pac., Ltd. v Sterling Biotech Ltd. 2013 NY Slip Op 03926 Decided on May 30, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 30, 2013
Sweeny, J.P., Saxe, Moskowitz, Gische, Clark, JJ. 10255N-
602297/09 10256N

[*1]Mariner Pacific, Ltd., Plaintiff-Appellant,

v

Sterling Biotech Limited, Defendant-Respondent.




Nimkoff Rosenfeld & Schechter, LLP, Syosset (Ronald A.
Nimkoff of counsel), for appellant.
McGuireWoods LLP, New York (Marshal Beil of counsel), for
respondent.

Order, Supreme Court, New York County (Richard B. Lowe III, J.), entered March 10, 2011, which, insofar as appealed from, denied plaintiff's request for jurisdictional discovery, unanimously affirmed, without costs. Order, same court (Shirley Werner Kornreich, J.), entered March 15, 2011, which, insofar as appealed from, denied plaintiff's application for jurisdictional discovery, unanimously reversed, on the law and in the exercise of discretion, without costs, plaintiff's application to stay the hearing before the special referee pending disclosure granted, without prejudice to defendant applying for a protective order limiting disclosure.

The first order appealed from arose out of defendant's motion to dismiss for lack of personal jurisdiction; plaintiff argued that the action should not be dismissed until plaintiff had the opportunity to conduct discovery. The first order did not dismiss the action; instead, it properly ordered a hearing to determine if New York had jurisdiction over defendant (see Matter of Preferred Mut. Ins. Co. [Fu Guan Chan], 267 AD2d 181, 182 [1st Dept 1999]). Also, at the time of the first order, plaintiff had not yet propounded any discovery requests and that order neither permitted nor prohibited discovery.

By the time of the second order, plaintiff had propounded discovery requests. We believe that jurisdictional discovery in addition to what was already ordered by the motion court is appropriate in this case. It is true that some of the discovery requests are overbroad. Therefore, our decision is "without prejudice to defendant []applying, if so advised, . . . for a protective [*2]order appropriately limiting disclosure to that which is reasonably related to the jurisdictional issue" (Peterson v Spartan Indus., 33 NY2d 463, 467-468 [1974]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 30, 2013

CLERK