Petitioner Fails to Demonstrate Pre-Litigation Disclosure Under CPLR 3102(c) Warranted

It is often best to try to avoid costly, protracted litigation where possible. Under CPLR 3102(c), a petitioner may initiate a special proceeding before commencing an action to obtain disclosure “to aid in bringing an action, to preserve information or to aid in arbitration.” Pre-litigation discovery pursuant to CPLR 3102(c) may be used in two primary instances. First, a plaintiff might require the information in order to obtain the identity of a necessary party. Second, a party may obtain pre-litigation discovery to preserve necessary evidence when there is a strong possibility that the evidence will be lost or destroyed. However, CPLR 3102(c) cannot be used to determine whether the petitioner has a cause of action.  The petitioner in Matter of Saloman v. Porter, 2018 NY Slip Op 50463(U) at *1 (Sup. Ct. W. Co. 2018) commenced a special proceeding pursuant to CPLR §3102(c), seeking to compel depositions of respondents relating to assets.  The petitioner, “wanted 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.”  In opposition, respondent affirmed “she no longer has any files relating to transactions which occurred more than 25 years ago, that she had 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.” In denying petitioner’s motion, the court held that petitioner failed “to meet the threshold set to warrant invoking the power of the court to grant pre-commencement disclosure” since 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.”

The Law Office of Aaron M. Schlossberg, Esq., P.L.L.C.

(This writing is for general information purposes only, should not be construed as legal advice and does not establish an attorney-client relationship)