Cotler v. Retail Credit Co.

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

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 19, 1963
• Status: Published

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.