Martinez v. Patel

126 Misc. 2d 985, 484 N.Y.S.2d 475, 1985 N.Y. Misc. LEXIS 2538

Opinion

OPINION OF THE COURT

Herbert Kramer, J.

This court holds in a matter of apparent first impression under CPLR 3106 that discovery may be had on jurisdictional issues prior to answer but must be limited thereto.

A medical malpractice action was instituted by the purported service of a summons and complaint. Prior to joinder of issue a motion was made for dismissal grounded for lack of personal service.

The plaintiffs served a notice of examination before trial on this issue whereupon the defendant moved for a protective order. The plaintiffs then cross-moved for a court order directing such discovery.

The plaintiffs cannot serve a discovery notice prior to the joinder of issue (CPLR 3106) but they may seek court-ordered discovery.

Practice under the Civil Practice Act precluded examinations before trial on motions dealing with lack of jurisdiction (Debrey v Hanna, 182 Misc 824; Standard Food Prods. Corp. v Vinas Unidas, 200 Misc 590; contra, Etter v Early Foundry Co., 164 Misc 88). The advent of the CPLR, however, expanded discovery. (Allen v Crowell-Collier Pub. Co., 21 NY2d 403; Rios v Donovan, 21 AD2d 409).

CPLR 3101 (a) allows discovery in the prosecution or defense of an action. A motion is a part of an action. Thus, under the CPLR provision full discovery may be utilized in aid of motions. No adequate reason has been suggested to truncate discovery in this instance. Curiously, its use will aid in conserving valuable judicial resources by limiting traverse trial time.

Footnotes

•

*

It would appear, however, that discovery in aid of jurisdictional motions which may end the litigation should not be as extensive as normal discovery but should be limited to the jurisdictional issue presented (see, Cronin v New England Stor. Warehouse Co., 54 Misc 2d 1088; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C310L12). Defendant’s motion for a protective order is denied and plaintiffs’ cross motion for a deposition is granted.

This court eliminated a hearing by this procedure in Epstein v Harris Corp. (Special Term, Part 1, index No. 18240/83).