Heart Chocolate Co. v. Avon Converting Co.

23 A.D.2d 844, 259 N.Y.S.2d 675, 1965 N.Y. App. Div. LEXIS 4125

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 20, 1965
• Status: Published

Opinion

Order entered February 23, 1965, which upon reargument recalled a prior decision and granted petitioners’ application pursuant to CPLR 3102 directing appellant to submit to an examination for the purpose of enabling petitioners to determine the potential defendants in an action that they intended to commence, unanimously reversed on the law and the facts, without costs or disbursements, and the motion is denied. The examination sought was not for the purpose of framing a complaint against appellant. It was to determine the names of appellant’s customers to whom appellant sold certain material which petitioners assert improperly contained the imprint of petitioners' candy box design. Petitioners’ complaint is that their names, design and style are being unlawfully used without their consent. In effect, what petitioners sought was to obtain the names of appellant’s customers to find out if there may be causes of action against those customers. We need not decide whether or not petitioners would have a cause of action against the customers. Clearly, petitioners are now -in possession of sufficient information to plead a cause of action against appellant. In such an action, the extent of the sales by appellant would be relevant to the question of the amount of damages. The information now sought might be obtained in such a suit. However, in the circumstances, it was an -improvident exercise of discretion to permit an examination of appellant, before any suit was commenced, for the sole purpose of obtaining the names of customers as a preliminary to a determination as to whether there may be causes of action against those customers. Concur — Botein, P. J., Breitel, Valente, Eager and Steuer, JJ.