Stump v. 209 East 56th St. Corp.

212 A.D.2d 410, 622 N.Y.S.2d 517

Opinion

—Order, Supreme Court, New York County (Leland DeGrasse, J.), entered June 1, 1994, which denied petitioner’s application pursuant to CPLR 3102 (c) for leave to conduct preaction discovery, unanimously affirmed, with costs.

Although CPLR 3102 (c) authorizes discovery to allow a plaintiff to obtain the identity of the prospective defendants, it cannot be used by a prospective plaintiff to determine whether he has a cause of action (Matter of Stewart v New York City Tr. Auth., 112 AD2d 939). Rather, it is only available where the moving party demonstrates that he has a meritorious cause of action and that the information sought is material and necessary to the actionable wrong (Matter of Bliss v Jaffin, 176 AD2d 106, 108). In the instant case, petitioner failed to establish that he has a viable claim of defamation against certain yet-unnamed people, as he failed to allege evidentiary facts of malice sufficient to overcome the common interest qualified privilege protecting any allegedly defamatory statements made about petitioner in confidential Incident Reports filed with the respondent corporation (Toker v Pollak, 44 NY2d 211; Lowinger v Jacques, 204 AD2d 175). Thus, it was proper to deny petitioner’s application for preaction discovery. Concur—Sullivan, J. P., Wallach, Rubin, Ross and Tom, JJ.