Opinion
May 28, 1976
Appeal from the Erie Supreme Court.
Present — Marsh, P.J., Cardamone, Goldman and Witmer, JJ.
Order unanimously reversed, without costs, and motion denied. Memorandum: Respondent, City of Buffalo (City), alleges that the appellants defrauded the City by securing payment for services which they did not render. Special Term granted the City's motion to examine appellant "to aid it [City] in bringing an action" against each of the appellants. Among other contentions, appellants claim that preaction disclosure should not be permitted that no showing has been made that the requested disclosure is "material and necessary" (CPLR 3101, subd [a]). They assert that the City knows the identity of the prospective defendants and that as their employer the City has the payroll and general employment records from which it can secure the information it seeks. The City has not denied this claim and has not indicated that it made any effort to examine its own records to determine whether it has the information it alleges it needs in order to frame its complaints. The following statement in Zakarias v Radio Patents Corp. ( 20 A.D.2d 795, 796) is applicable to the facts before us: "In our opinion, the facts disclosed * * * indicate that [it] has sufficient information to enable [it] to draw a complaint without the examination which [it] seeks (New Rochelle Precision Grinding Corp. v. Marino, 9 A.D.2d 685, and cases cited). An examination will be denied where its object is to enable plaintiff to state the amount of damages, since damages can be estimated." (See, also, Matter of Milbank v Milbank, 35 A.D.2d 940; Stewart v Socony Vacuum Oil Co., 3 A.D.2d 582.) It may be that after service of its complaints the City might be entitled to disclosure in order to amend its complaints or to secure information material and necessary to prosecute its actions, if so advised. Under the circumstances its application is premature and its motion is denied. In view of our determination it is unnecessary to reach any other questions urged by appellants.