Summary
emphasizing importance of close business relationship between nonparty and party in finding relevance for purposes of discovery
Summary of this case from Gama Aviation Inc. v. Sandton Capital Partners, LPOpinion
May 26, 1994
Appeal from the Supreme Court, Suffolk County (Robert W. Doyle, J.).
Order of the same court, entered January 30, 1992, which denied defendant's motion to vacate plaintiff's note of issue and certificate of readiness dated May 22, 1991, unanimously reversed, on the law, and defendant's motion granted, without costs.
Inasmuch as plaintiff acknowledges that, at the time of the transaction in issue, it was affiliated with Banque Arabe, a French corporation which is not a party to this action and which is now the owner of another similarly named corporation which owns plaintiff, Hague Convention discovery from Banque Arabe should have been granted.
CPLR 3101 (a) provides for "full disclosure of all evidence material and necessary in the prosecution or defense of an action" by a non-party in the following pertinent circumstances:
"(3) a person * * * residing at a greater distance from the place of trial than one hundred miles * * * and
(4) any other person, upon notice stating the circumstances or reasons such disclosure is sought or required."
Aside from the obvious fact that Banque Arabe, a resident of France, comes under CPLR 3101 (a) (3) (see, Simpson v. K Mart Corp., 194 A.D.2d 966), the "circumstances" requirement of CPLR 3101 (a) (4) was amply met. In construing a pre-1984 version of the statute, which used the phrase "special circumstances", this Court held that
"[t]he cases have interpreted the statutory requirement most liberally to give effect to the strong policy favoring full disclosure to adequately prepare for trial * * * the showing needed under CPLR 3101 (a) (4) `is truly a nominal one' ([Villano v. Conde Nast Publs.] 46 A.D.2d, at p 120) * * *
"If we were to apply the amended statute [the 1984 amendment dropped the phrase `special circumstances'] here, we perceive no legislative intent to depart from the liberal interpretation heretofore accorded to the `special circumstances' standard in the former legislation." (Slabakis v. Drizin, 107 A.D.2d 45, 46-48.)
Under the prior standard, the requirement of "special circumstances" was found to be met where a non-party was a corporation with a business relationship with a party (see, Southbridge Finishing Co. v. Golding, 2 A.D.2d 430). Obviously, inasmuch as the "circumstances" no longer have to be "special", the interpretation of the amended paragraph (4) should be even more generous (see, Siegel, N.Y. Prac § 345, at 494 [2d ed]). In this case, plaintiff and Banque Arabe are, at the very least, closely related, if not corporate alter egos. Moreover, on appeal, plaintiff's principal argument against discovery from Banque Arabe is that of relevancy. We note, however, that the IAS Court did not determine that the requested discovery was not relevant. The language of its decision indicates that it found relevance, but denied discovery solely on the ground of lack of special circumstances. In any event, the requested discovery is relevant. Both below and on appeal, plaintiff conceded that Banque Arabe had direct involvement in the transaction, aside from its indirect involvement as an affiliate of plaintiff.
Finally, inasmuch as defendant is entitled to Hague Convention discovery from Banque Arabe, its motion to vacate plaintiff's note of issue and certificate of readiness should have been granted.
Concur — Ellerin, J.P., Kupferman, Ross, Nardelli and Williams, JJ.