Opinion
11335N Index 161557/18
04-02-2020
Boies Schiller Flexner LLP, New York (Yotam Barkai of counsel), for appellant. Kaplan Levenson P.C., New York (Steven M. Kaplan of counsel), for respondent.
Boies Schiller Flexner LLP, New York (Yotam Barkai of counsel), for appellant.
Kaplan Levenson P.C., New York (Steven M. Kaplan of counsel), for respondent.
Gische, J.P., Gesmer, Oing, Moulton, JJ.
Order, Supreme Court, New York County (Melissa A. Crane, J.), entered May 3, 2019, which, to the extent appealed from, denied respondent The RealReal, Inc.'s (TRR) motion pursuant to CPLR 3103(a) for a protective order denying the petition brought pursuant to CPLR 3102(c) to compel TRR to disclose the identity of persons who posted for sale on its consignment website articles of clothing allegedly stolen from petitioner, or, alternatively, directing petitioner to execute a confidentiality agreement as a pre-condition to disclosure by TRR, unanimously affirmed, with costs.
As a threshold matter, TRR's motion pursuant to CPLR 3103(a) is a proper vehicle for challenging the petition brought pursuant to CPLR 3102(c) (see e.g. Liberty Imports v. Bourguet, 146 A.D.2d 535, 537, 536 N.Y.S.2d 784 [1st Dept. 1989] ). CPLR 3102(c) merely provides a device for obtaining pre-action discovery, and CPLR 3103(a) is a means for obtaining "at any time" an order "denying, limiting, conditioning or regulating the use of any disclosure device." The fact that TRR has produced information relating to 20 of the items at issue does not moot its appeal (see Matter of Camara v. Skanska, Inc., 150 A.D.3d 548, 55 N.Y.S.3d 27 [1st Dept. 2017] ; Matter of New York City Asbestos Litig., 109 A.D.3d 7, 12 n. 2, 966 N.Y.S.2d 420 [1st Dept. 2013], lv dismissed 22 N.Y.3d 1016, 981 N.Y.S.2d 347, 4 N.E.3d 357 [2013] ).
In support of her application for pre-action discovery pursuant to CPLR 3102(c), petitioner demonstrated a meritorious cause of action for conversion (see Bishop v. Stevenson Commons Assoc., L.P., 74 A.D.3d 640, 905 N.Y.S.2d 29 [1st Dept. 2010], lv denied 16 N.Y.3d 702, 2011 WL 135160 [2011] ; Vigilant Ins. Co. of Am. v. Housing Auth. of City of El Paso, Tex., 87 N.Y.2d 36, 44, 637 N.Y.S.2d 342, 660 N.E.2d 1121 [1995] [elements of conversion claim] ). In an affidavit, she averred that she had a collection of thousands of articles of fashion items made by respondent Marc Jacobs International, LLC (Marc Jacobs), many of which were rare or unique; that she routinely monitored TRR's website for other Marc Jacobs items; and that she noticed, beginning in late 2017, that items similar to hers were being posted online. Growing suspicious, she inventoried her collection and discovered that many pieces were missing that seemed to be the same as items posted on TRR's website. Petitioner reviewed thousands of Marc Jacobs items that had been listed for sale on TRR's website, and identified 153 items that she believed had been stolen from her collection. She then purchased several of the items, including one that had an identifying tear in it, and ascertained that they had been hers.
Petitioner also demonstrated that the discovery she seeks from TRR—the identity of the people who posted—is material and necessary to the prosecution of her posited cause of action (see Bishop, 74 A.D.3d at 641, 905 N.Y.S.2d 29 ; see e.g. Matter of Alexander v. Spanierman Gallery, LLC, 33 A.D.3d 411, 822 N.Y.S.2d 506 [1st Dept. 2006] ; Matter of Banco de Concepcion v. Manfra, Tordella & Brooke, 70 A.D.2d 840, 841, 417 N.Y.S.2d 734 [1st Dept. 1979], appeal dismissed 48 N.Y.2d 655 [1979] ; Matter of Cohen v. Google, Inc., 25 Misc.3d 945, 887 N.Y.S.2d 424 [Sup. Ct., N.Y. County 2009] ).
Supreme Court providently exercised its discretion in shaping and executing the confidentiality order governing disclosure by TRR. The court addressed TRR's concerns about petitioner's contacting its customers by modifying the form to require petitioner to give TRR 24 hours' written notice prior to any use of information disclosed under the order. The court also providently exercised its discretion in declining to restrict petitioner's use of information disclosed under the order to conversion claims. Although petitioner does not currently posit any theory other than conversion as a basis for pre-action discovery, she is not foreclosed from developing, at some point, new viable theories for recovery, such as replevin (see e.g. Alexander, 33 A.D.3d at 412, 822 N.Y.S.2d 506 ). There is no basis for making it impossible for her to seek recovery under any legitimate theory that may arise.
We have considered TRR's other arguments and find them unavailing.