Willis v. Foster Wheeler Corp.

31 Misc. 2d 799, 220 N.Y.S.2d 470, 1961 N.Y. Misc. LEXIS 2335

Opinion

Sidney A. Fine, J.

This motion has been withdrawn against Atlantic Gulf and Pacific Company. Petitioner has sufficiently shown that he possesses a prima facie cause of action but that he is ignorant of the identity of the corporation liable therefor. He is accordingly entitled to an examination for the purpose of ascertaining the identity of the prospective defendant or defendants (Matter of Roland [DeAk], 10 A D 2d 263, 264; Peterman v. Schpelman, 274 App. Div. 901). He is also entitled to the production of all material or relevant books, papers and records, in the possession or control of the examinee, for use in accordance with section 296 of the Civil Practice Act. There is, however, no need shown, at this time, for a discovery and inspection, and it is accordingly unnecessary to decide whether petitioner is in any event entitled to such relief. It is to be noted that section 324 of the Civil Practice Act, which authorizes a discovery and inspection, is limited to compelling a party “ to an action pending ” to make such discovery and inspection (see, also, Rules Civ. Prac., rule 140). Nor has any necessity been shown to exist at this time for any examination of all the respondents who remain (after the withdrawal of the motion as against Atlantic Gulf and Pacific), or for the additional relief sought in the notice of motion.

The motion is granted to the extent of directing petitioner’s former employer, Foster Wheeler Corporation, to produce for examination an officer, agent or employee having knowledge as to who was responsible for the injury to petitioner from the snapping and whipping about of the cable, to testify as to that question. All books, papers and records which are material, relevant or pertinent to such inquiry are to be produced for use in accordance with section 296 of the Civil Practice Act and the limited inspection permitted by that section. In other respects, the motion is denied, but without prejudice to a motion to examine one or more other respondents after the completion of the examination of Foster Wheeler Corporation, on a showing that the latter’s examination did not furnish petitioner with all the required information relating to identity, and without prejudice to a motion, after said completion, for the other relief presently denied. Settle order providing for the time and place of the examination.