Cotler v. Retail Credit Co.

18 A.D.2d 898, 237 N.Y.S.2d 781, 1963 N.Y. App. Div. LEXIS 4362

Opinion

Order entered on December 11, 1962, granting reargument and upon such reargument denying motion for discovery and inspection in order to frame a complaint grounded on libel unanimously affirmed, on the law, the facts and in the exercise of discretion, with $20 costs and disbursements to defendant-respondent. Plaintiffs have submitted their own affidavit reciting certain information allegedly furnished them by some unidentified member of their corporate insurance broker concerning! the supposed contents of a confidential report furnished life insurance companies by defendant, which is an investigating and reporting agency. “A plaintiff seeking an examination of a defendant to frame a complaint must show his case has merit ” (Kenerson v. Davis, 278 App. Div. 482, 485); and the affidavit of plaintiffs, unsupported by affidavits of other persons having information of the contents of the report, falls short of constituting such a showing. Plaintiffs may not secure an examination or discovery in order first to explore the feasibility of framing a complaint. It may be that plaintiffs can present under oath “ facts which will fairly indicate * * * some cause j of action against the adverse party ” (Stewart v. Socony Vacuum Oil Co., 3 A D 2d 582, 583). This determination is therefore without prejudice to a renewal of the motion in the event plaintiffs can make a credible showing that they have suffered actionable wrong at the hands of defendant. Concur - Botein, P. J., Breitel, Yalente, Steuer and Bastow, JJ.