Matter of Johnson v. Union Bank of Switzerland, AG

2017 NY Slip Op 3624, 150 A.D.3d 436, 51 N.Y.S.3d 417

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 4, 2017
• Docket: 150457/16 3929N 3928
• Status: Published

Opinion

Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered on or about August 24, 2016, which denied petitioners’ motion pursuant to CPLR 3102 (c) for pre-action disclosure, unanimously affirmed, with costs. Order, same court and Justice, entered November 29, 2016, which, upon reargument, adhered to the determination on the original motion, unanimously affirmed, without costs.

Supreme Court properly exercised its discretion in denying petitioners’ motion for pre-action discovery on the ground that, while the motion was pending, petitioners commenced an action, i.e., filed a summons and complaint (see Matter of Goldstein v New York Daily News, 106 AD2d 323 [1st Dept 1984]). Disclosure may only be obtained under CPLR 3102 (c) “ [b] efore an action is commenced.”

Petitioners also failed to demonstrate that they have a meritorious cause of action and that the information they seek is “material and necessary to the actionable wrong” (Holzman v Manhattan & Bronx Surface Tr. Operating Auth., 271 AD2d 346, 347 [1st Dept 2000]). Rather, they seek broad discovery to determine whether they may have a valid cause of action against Union Bank of Switzerland or other possible wrongdoers (see Bishop v Stevenson Commons Assoc., L.P., 74 AD3d 640 [1st Dept 2010], lv denied 16 NY3d 702 [2011]).

Concur— Richter, J.P., Andrias, Moskowitz, Feinman and Kapnick, JJ.