Opinion
69160/2017
04-04-2018
In the Matter of the Petition of Edan SALOMAN, Petitioner, for an order permitting pre-action disclosure from v. Susan PORTER and Michael Porter, Respondents.
William V. DeCandido, PC, 7150 Austin St., Ste 205/206, Forest Hills, NY 11375, Attorney for Petitioner. Mathew E. Hoffman, Esq., 420 Lexington Ave, New York, NY 10170, Attorney for Respondent.
William V. DeCandido, PC, 7150 Austin St., Ste 205/206, Forest Hills, NY 11375, Attorney for Petitioner.
Mathew E. Hoffman, Esq., 420 Lexington Ave, New York, NY 10170, Attorney for Respondent.
Lawrence H. Ecker, J.
The following papers numbered 1 through 25 were read on the motion of EDAN SALOMAN ("petitioner"), made pursuant to CPLR § 3102(c), seeking pre-commencement disclosure, as against SUSAN PORTER and MICHAEL PORTER ("respondents"):
PAPERS/NUMBERED
Notice of Petition, Petition, Affidavits (2), Exhibits A–Q 1–21
Court rules require plaintiff to use numbered exhibit tabs.
Affirmations in Opposition (2), Exhibit 1 22–24
Reply Affirmation 25
Upon the foregoing papers, the court determines as follows:
This is a special proceeding, brought pursuant to CPLR § 3102(c), seeking pre-commencement disclosure to aid in bringing an action, to preserve information or to aid in arbitration. Petitioner seeks to enforce Notices to Take Deposition as against each respondent.
Petitioner, a citizen of Israel and the United Kingdom, on behalf of himself and his three siblings, is of the belief that there is property, or monies, in the United States, and specifically New York, that was in the name of their late father, Yacov Saloman, who died on June 1, 2001("the decedent"). Petitioner and his siblings are the heirs and distributees to the decedent's estate. To assist petitioner in the quest to discover and recoup any estate's assets, petitioner alleges that he "wants to bring an action to recover those assets for the benefit of the estate and himself, but needs to obtain and preserve evidence from the respondents in order to do so."
Petitioner has submitted multiple documents that he believes show the decedent's real estate holdings in New York and in New Jersey. He alleges that respondents are in a position to provide further information relative to the estate's entitlements, in that Susan Porter, as attorney-at-law and attorney-in-fact, represented entities in which the decedent had an interest, namely Constellation Property Company Limited and Overseas Commodities, LLC ("Overseas"). These companies, petitioner alleges, were each active in the sale and financing of thousands of cooperative apartments, including an apartment on East 57th Street, in New York City. Susan Porter assisted George Fokschaner, a partner of the decedent, relative to the sale of a cooperative apartment from Fokschaner to the decedent in the early 1990's. Petitioner alleges that Michael Porter, as an attorney-at-law and attorney-in-fact, utilized a power of attorney from Overseas to sell a cooperative apartment in Brooklyn in the 1990's for which there was no accounting for the sale proceeds.
Susan Porter, in her affirmation in opposition, denies she has been evasive, as alleged by petitioner, and represents, under oath, that she has not represented Fokschaner since mid-1991, that the friend who was to purchase the Fokschaner apartment was his Israeli friend, that she no longer has any files relating to transactions which occurred more than 25 years ago, that she has no recollection of the documents she would have had at the time, and that the documents submitted by petitioner, to the extent they may involve her, do not refresh her recollection. It is Susan's position that petitioner must produce documents that expressly indicate her involvement in specific transactions, particularly as she avers that she does not remember any such dealings.
Michael Porter, in his affirmation, states under oath that he is not an attorney-at-law, and that to his recollection, he did act as agent and agent-in-fact, on behalf of the holders of unsold shares in various cooperative apartments in or about 1991, and that he does recall Fokschaner mentioning that he wished to sell a cooperative apartment on 57th Street to a friend and that the decedent may have been that friend. He recalls nothing else of the details.
The court heard oral argument on the petition on February 28, 2018. Petitioner's counsel cited Matter of Leff v. Our Lady of Mercy Academy , 150 AD3 1239 [2d Dept 2017] as authority to support the grant of the petition. In Matter of Leff, supra the Court held that the petitioners were entitled to pre-commencement disclosure because they had shown a cognizable cause of action in tort, but needed the identity of the individuals known by respondent who had disseminated an actionable photographs at respondent school. As set forth in Matter of Leff , supra at p.1240, "(D)isclosure to ‘aid in bringing an action’ ( CPLR 3102[d] ) authorizes discovery to allow a plaintiff to frame a complaint and to obtain the identity of the prospective defendants (internal citations omitted) ... However, pre-action disclosure ‘may not be used to determine whether the plaintiff has a cause of action (internal citations omitted)."
The governing principles of pre-action disclosure were explored in Matter of Stewart v. New York City Transit Authority , 112 AD2d 939 [2d Dept 1985], where the court stated:
"It is well established that disclosure ‘to aid in bringing an action’ ( CPLR 3102[c] ) authorizes discovery to allow a plaintiff to frame a complaint and to obtain the identity of the prospective defendants ... Of particular importance, however, is the caveat that pre-action disclosure under CPLR 3102(c) is not available to the would-be plaintiff to determine if he has a cause of action ... This limitation is designed to prevent the initiation of troublesome and expensive procedures, based upon a mere suspicion, which may annoy and intrude upon an innocent party. Where, however, the facts alleged state a cause of action, the protection of a party's affairs is no longer the primary consideration and an examination to determine the identities of the parties and what form or forms the action should take is appropriate (internal citations omitted)."
Here, even if petitioner believes that Susan Porter or Michael Porter is liable to the decedent's estate for conduct they undertook while representing his interests, petitioner already has their identities. If petitioner is seeking only to preserve documentation allegedly in the possession of respondents, each of them, under oath, has represented to the court that she or he has no such documentation, nor specific recollection of the relevant events. If this turns out to be untrue, then she, as an officer of the court, and he, each face a potential perjury prosecution.
It is noted that petitioner has not identified entities that may be pursued; the court is also mindful that the statute of limitations may have run as to any claims petitioner may hereafter seek to enforce.
Applying the governing legal principles here, the court finds that petitioner fails to meet the threshold set to warrant invoking the power of the court to grant pre-commencement disclosure. Petitioner has not articulated that the estate has a cognizable cause of action, or shown that respondents are exclusively in possession of information or documentation that may aid him in his pursuit. In fact, a careful review of the petition reveals that there is no set of facts presented in the application that establishes an actionable offense (compare Banco de Concepcion v. Manfra, Tordella & Brooke, 70 AD3d 1239 [1st Dept 1979] ; Matter of Alexander v. Spanierman Gallery , LLC, 33 AD3d 411 [1st Dept 2006] ; Matter of Leff, supra ). Instead, the petition is, in fact, an effort to determine whether a cause of action exists and, absent additional justification, violates the purpose of the limitation on pre-trial discovery to "prevent the initiation of troublesome and expensive procedures, based upon a mere suspicion, which may annoy and intrude upon an innocent party" (Stewart v. New York City Transit Authority , supra ). As stated by the court in In re Estate of Tongate (21 Misc 3d 673, 675 [Sup. Ct., Chemung County 2008] ), "... In order for the petitioners to obtain pre-action disclosure pursuant to CPLR 3102(c), the petitioners must demonstrate that they have a meritorious and/or prima facie cause of action and the information they seek is material and necessary to the actionable wrong (internal citations omitted)." Applying this test to the case sub judice, the court finds that petitioner has failed to carry his burden. Accordingly, it is hereby
That petitioner, in his attorney's reply, implies that Susan Porter may be holding back relevant information because she refuses to cooperate does not constitute a sufficient ground to overcome the deficiencies in petitioner's proof.
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ORDERED that the motion of petitioner EDAN SALOMAN, made pursuant to CPLR § 3102(c), for an order granting pre-commencement disclosure as against SUSAN PORTER and MICHAEL PORTER is denied.
The foregoing constitutes the decision, order and judgment of the court.