Opinion
Index No. 532396/2023
01-27-2024
In the Matter of the Application of Edison Andrade MORQUECHO, Petitioner, For an Order of Disclosure for Purposes of Bringing an Action Pursuant to CPLR Section 3102(c), v. HMH ARCHITECTURAL METAL & GLASS, Respondent.
The following numbered papers were considered on this petition:
NYSCEF Doc No. 1: Petition
NYSCEF Doc No. 2: Proposed Order to Show Cause
NYSCEF Doc No. 3: Exhibit A — Petitioner's Affidavit in Support
NYSCEF Doc No. 4: Request for Judicial Intervention
NYSCEF Doc No. 5: Request for Judicial Intervention Addendum
NYSCEF Doc No. 6: Order to Show Cause
NYSCEF Doc No. 7: Affidavit of Service on Respondent
NYSCEF Doc No. 8: Statement of Authorization for Electronic Filing
Background
Eduardo Andrade Morquecho ("Petitioner") was working under the employment of HMH Architectural Metal & Glass ("Respondent") at the Respondent company's 53 9th Street, Brooklyn, New York premises (see NYSCEF Doc No. 1, petition ¶ 3). On August 21, 2023, in the course of this employment, a delivery truck arrived on the work premises (see NYSCEF Doc No. 3, Petitioner's affidavit in support ¶ 3). When Petitioner approached the truck to assist with unloading the delivered material, some of it fell from the truck and struck Petitioner, causing him to be injured (see id. ). Petitioner intends to bring suit against the delivery truck company but is lacking vital information required for such a suit, including the name and address of the company and the pertinent accident report (see NYSCEF Doc No. 1, petition ¶¶ 2-3). These particulars are in Respondent's possession, but Respondent refuses to divulge them to Petitioner (see NYSCEF Doc No. 3, Petitioner's affidavit in support ¶¶ 4-5).
Petitioner now proceeds, pursuant to CPLR 3102 (c), in seeking an order to aid in commencing an action. He seeks to compel Respondent to disclose the necessary information concerning the delivery truck company — its name and address, and the accident report — in order to make it possible for Petitioner to identify and bring suit against this as-yet-unnamed delivery company for personal injuries (see NYSCEF Doc No. 1, petition ¶ 9).
Contentions
Petitioner proceeds against Respondent to order the pre-action disclosure of information held by Respondents, namely the accident report of the incident that caused Petitioner's injuries along with the name and address of the delivery truck company involved in that incident (see NYSCEF Doc No. 1, petition ¶ 2). To substantiate the request for disclosure, Petitioner references CPLR 3102(c), which concerns pre-action disclosure (see id. ¶ 7). CPLR 3102 (c) provides, "Before an action is commenced, disclosure to aid in bringing an action, to preserve information or to aid in arbitration, may be obtained, but only by court order."
Petitioner cites the Appellate Division, First Department decision in Holzman v Manhattan & Bronx Surface Tr. Operating Auth. (271 AD2d 346 [1st Dept 2000] ) in support of his application (see id. ¶ 8). It holds that "A petition for pre-action discovery should only be granted when the petitioner demonstrates that he has a meritorious cause of action and that the information sought is material and necessary to the actionable wrong" ( id. at 347 ).
Petitioner asserts that disclosure of the information concerning the accident is patently necessary to facilitate his suit against the delivery truck company that allegedly caused his injuries. According to Petitioner, the essentiality of the hidden information in question renders Petitioner's request an appropriate usage of this court's "well-settled" ability to order disclosure (NYSCEF Doc No. 1, petition ¶ 8).
Respondent has failed to oppose Petitioner's petition and the arguments in support. It neither submitted opposition papers nor appeared on the return date, despite having been served in accordance with the provisions of the order to show cause commencing this special proceeding (see NYSCEF Doc No. 7, affidavit of service).
Discussion
In considering pre-action disclosure requests, it is a time-honored duty of the court to ensure that inappropriate disclosure orders are not granted. An improper disclosure order request would be one that lacks basis in a potential cause of action — where a granted disclosure order could be likened to "a fishing expedition to ascertain whether a cause of action exists" ( Bishop v Stevenson Commons Assoc., L.P., 74 AD3d 640, 641 [1st Dept 2010] ). A court order mandating pre-action disclosure must also take care to compel narrowly tailored, not expansive, disclosure (see Geffner v Mercy Med. Ctr., 83 AD3d 998 [2d Dept 2011] [affirming a trial court's denial of plaintiff's motion for overly broad disclosure compliance order]).
The trial court is afforded sound discretion in determining whether to grant or deny a disclosure request (see CPLR 3101 [a] ; Mattocks v White Motor Corp., 258 AD2d 628 [2d Dept 1999] ). In fact, CPLR 3101 (a) speaks to the importance of ample disclosure, stating, "There should be full disclosure of all matter material and necessary in the prosecution or defense of an action ...." This standard for ordering disclosure, namely essentiality, is a standard satisfied by Petitioner in this pre-action disclosure proceeding. Respondent's current refusal to disclose relevant information clearly hinders Petitioner's ability to sue the company that struck Petitioner, and Respondent's disclosure of relevant information is essential for Petitioner's stated goal of pursuing suit.
The importance of pertinent information disclosure established in CPLR 3101 (a) is reflected in the 2013 case of Matter of Konig v WordPress.com (112 AD3d 936 [2d Dept 2013] ), which held that when a petitioner suggests a viable potential cause of action through recounting the relevant facts, "a petition for pre-action discovery limited to obtaining the identity of prospective defendants should be granted ...." This holding, which is predicated on the allegation of both a legitimate prospective cause of action and the limited nature of the disclosure request, is relevant in considering the current case. Petitioner suggests a viable cause of action based on a description of the facts surrounding his injury caused by falling material from the nameless delivery truck company (see NYSCEF Doc No. 3, petitioner's affidavit in support ¶ 3). Petitioner's pre-action disclosure proceeding is inherently limited, requesting no broad swaths of material, but merely a name, address, and accident report (see NYSCEF Doc No. 1, petition ¶ 2).
"Simply put, discovery can be obtained prior to the start of a case, if, disclosure is needed to: (a) identify one or more parties; (b) frame claims or allegations in a complaint; (c) preserve testimony; (d) preserve evidence; and/or (e) aid in arbitration" (Katryna L. Kristoferson et al., Two CPLR Devices Worth Remembering , NYLJ, Jan. 18, 2024 at 3, col 2).
This recent New York Law Journal article provides an informative synopsis of the law concerning pre-action disclosure.
In Leff v Our Lady of Mercy Academy (150 AD3d 1239, 1240 [2d Dept 2017] ), the Appellate Division, Second Department granted pre-action disclosure in order "to allow a plaintiff to frame a complaint and to obtain the identity of the prospective defendants." The case at bar presents a scenario of substantial similarity. Petitioner seeks an order of disclosure for the ultimate purpose of identifying the prospective defendant — the as-of-yet-unnamed delivery truck company — and establishing a legitimate case against this company for allegedly causing Petitioner's injuries.
Determination
As such, and in light of Respondent's lack of opposition, IT IS HEREBY ORDERED and ADJUDGED that Petitioner's petition seeking disclosure of the salient information in Respondent's possession, including the August 21, 2023 incident's accident report and the name and address of the delivery truck company that allegedly caused Petitioner's injuries, is GRANTED.
IT IS HEREBY ORDERED and ADJUDGED that Respondent HMH Architectural Metal & Glass is ordered to provide the August 21, 2023 incident's accident report and the name and address of the delivery truck company that allegedly caused Petitioner's injuries as well as any documents referencing same, within five days of the service upon them of a copy of this decision, order, and judgment along with notice of entry. Said Respondent shall preserve the same in anticipation of Petitioner's filing a complaint in this matter.