Opinion
May 2, 1991
Appeal from the Supreme Court, New York County (Francis N. Pecora, J.).
Defendant Segal is a former employee of plaintiff Dorjean Textiles, Ltd., Inc. now owned by plaintiff Aaron Pitter and Company, Inc. After she left Dorjean's employ, this action alleging two causes of action, was commenced against her. In the first cause of action, plaintiffs alleged that defendant wrongfully took proprietary information of customers and accounts belonging to Dorjean, converting this information to her own use and benefit. In the second cause of action, plaintiffs alleged "on information and belief" that defendant, before terminating her employment, took and received orders from Dorjean's customers and converted these orders to the use and benefit of herself and her new employer.
After discovery, defendant moved for partial summary judgment as to the second cause of action. In support of this motion, she submitted her verified denial that she had converted sales orders (see, CPLR 105 [t]; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3212:15, at 436). The motion was also supported by plaintiffs' admission in answers to interrogatories and discovery demands that they did not possess any information or documents demonstrating defendant's claimed misconduct in the second cause of action. In opposition, plaintiffs relied on an affirmation of counsel without personal knowledge of the facts. In addition, the affirmation simply alleged conclusory and speculative allegations of defendant's wrongdoing which are insufficient to defeat a motion for summary judgment (see, Zuckerman v City of New York, 49 N.Y.2d 557, 560; Citibank v Furlong, 81 A.D.2d 803, 804). Likewise, although CPLR 3212 (f) permits an opposing party to obtain further discovery if "facts essential to justify opposition may exist but cannot then be stated", it should not be utilized to embark upon a "fishing expedition" simply exploring the possibility of asserting a cause of action. (Oates v Marino, 106 A.D.2d 289, 292; Citibank v Furlong, supra, at 804.)
Concur — Murphy, P.J., Milonas, Ross and Asch, JJ.