The following papers, numbered 1 to To 3, were read on this application for pre-action discovery Notice of Motion/ Petition/ OSC — Affidavits — Exhibits No(s) 1 Answering Affidavits — Exhibits No(s) 2 Replying No(s) 3 DECISION ORDER ON MOTION By order to show cause, Petitioner All Season Protection seeks pre-action discovery from Respondents City of New York (the “City”), New York City Police Department (“NYPD”), and the Fire Department of New York (“FDNY”) related to an alleged incident on May 26, 2019 at Iguana New York (“Iguana”), 240 West 54th Street, New York, New York in which Petitioner allegedly removed non-party Jocelyn Carrera from Iguana and threw her on the sidewalk. Petitioner alleges that Carrera has retained counsel to commence a potential lawsuit against Petitioner and that Petitioner has been “verbally advised” that the NYPD has a video of the incident which “is in conflict with Ms. Carrera’s allegations” (Petition p 2). Petitioner therefore seeks: (1) from the NYPD, information about any police officers who responded to the incident; (2) from the NYPD, to obtain and preserve the video and any related incident reports; (3) from the FDNY, to obtain records relating to the incident; (4) from all Respondents, names and addresses of all witnesses; (5) preservation of any video footage or reports pertaining to the police response to the subject incident. For the reasons below, after oral argument, the Court grants the Petition solely to the extent of ordering Respondents to preserve any evidence associated with the subject incident, including but not limited to videos, photographs, reports, 911 calls, sprint records, and witness lists until May 26, 2022, or the conclusion of any litigation, including the exhaustion of any appeal, whichever is later. Petitioner argues that it has “alleged facts sufficient to form a defense in this case,” namely that “[u]pon information and belief, there is video footage and/or…accident reports indicating that plaintiff tripped and fell on the sidewalk and was not lifted and thrown to the ground” by Petitioner’s employee(s) (Petition p 4). The NYPD, the only Respondent to oppose, does not have any objection to preserving the information sought by Petition, but argues that the remainder of the Petition should be denied due to Petitioner’s failure to satisfy the standard for pre-action discovery. CPLR 3102(c) provides that “[b]efore an action is commenced, disclosure to aid in bringing an action, to preserve information or to aid in arbitration, may be obtained, but only by court order.” “‘Disclosure to aid in bringing an action’ authorizes discovery to allow a plaintiff to frame a complaint and to obtain the identity of the prospective defendants” (Stewart v. NY City Tr. Auth., 112 AD2d 939, 939-940 [2d Dept 1985]). “Of particular importance, however, is the caveat that pre-action disclosure under CPLR 3102(c) is not available to the would-be plaintiff to determine if he has a cause of action” (id. at 940 [emphasis in original]; Mfrs. & Traders Trust Co. v. Bonner, 84 AD2d 678, 679 [4th Dept 1981] ["A potential plaintiff is entitled to pre-action disclosure to identify prospective defendants and to determine the precise facts upon which a cause of action lies in order to frame pleadings and to determine what form the action should take."]). As NYPD argues, the plain language of CPLR 3102(c) and the cases interpreting it focus entirely on the use of disclosure to aid in “bringing an action” — that is, a prospective plaintiff determining the best way to frame a complaint, not whether there is any complaint to frame. If pre-action discovery “…cannot be used by a prospective plaintiff to ascertain whether he has a cause of action at all,” (Stump v. 209 E. 56th St. Corp., 212 AD2d 410 [1st Dept 1995]), it logically follows that it is equally unavailable to a prospective defendant seeking to ascertain either a prospective plaintiff’s claim, or a prospective defense to that claim. Neither party cites, and the Court is not aware, of any cases in which a defendant, as a petitioner seeking pre-action discovery, has been granted discovery in support of a prospective defense (see Katz v. Phoenix Life Ins. Co., 2016 NY Slip Op 30101[U], *15 [Sup Ct, NY County 2016, Scarpulla, J.] [noting that no cases were cited "in which a court allowed a defendant pre-action discovery once an action had been commenced but prior to a defendant filing its counterclaim," and that the information sought "will undoubtedly be available to it during ordinary discovery"]). Courts have rejected requests for pre-action discovery where sufficient information already exists to frame a complaint (see e.g. Holzman v. Manhattan & Bronx Surface Tr. Operating Auth., 271 AD2d 346, 347 [1st Dept 2000] [reversing motion court's order directing respondents to identify the bus involved in petitioner's accident and produce it for inspection where petitioner "failed to allege any facts supporting his bare claim that respondents were negligent and that this negligence caused his injury," and petitioner already had "sufficient information to frame his complaint," and could "identify the defendants, the bus route, and the time and place of the accident."]; Matter of Uddin v. NY City Tr. Auth., 27 AD3d 265, 266 [1st Dept 2006] [reversing motion court's order compelling disclosure for in camera inspection of the investigative file related to petitioner's subway accident where notice of claim "already set forth the time, place and particulars of the accident [and t]he only purpose of inspecting the file…would be to explore alternative theories of liability, which is not a proper basis for invoking CPLR 3102(c)]). Indeed, even in the context of General Municipal Law (GML) §50-h, which explicitly permits pre-action discovery by defendant municipalities, §50-h has been strictly construed to not incorporate the liberal discovery provisions of the CPLR (Alouette Fashions, Inc. v. Consolidated Edison Co. of NY, 119 AD2d 481 [1st Dept 1986], aff’d for reasons stated below 69 NY2d 787 [1987] [holding that the language of 50-h precluded City from compelling production of documents in advance of statutory hearing]). Here, Petitioner cites as support only a vague statement, not attributed to any particular source, that video footage or accident reports exist which would contradict a statement in a complaint that does not yet exist. Even if this were sufficient to merit further analysis, the statement already indicates that Petitioner has sufficient information to frame its defense: its agents did not injure Carrera, she injured herself. Even if an accident report, video, or other evidence were to conclusively prove this defense, it would be available in discovery, particularly because NYPD has not denied the existence of at least some material evidence or opposed preservation here. In reply, Petitioner argues that “[w]hile it may be true that no precedent compels this court to require the production, no precedent compels this court to deny the application either” (quoting Matter of Barillaro v. City of NY, 53 Misc 3d 307, 310 [Sup Ct, Bronx County 2016, Danziger, J.]). This demands that the Court read into CPLR 3102(c) language that the legislature certainly could have, but did not, include, namely “defense.” Moreover, even setting aside that Barillaro is not binding authority, and that there is conflicting persuasive authority regarding the scope of disclosure in a 50-h context, (Dailey, 2020 NY Slip Op 30200[U]), Barillaro is distinguishable. While Petitioner is correct that the Barillaro petitioner sought and was granted the opportunity to obtain video surveillance footage, disclosure was permitted for reasons inapplicable here. Most importantly, like every other case cited by the parties, Barillaro involved a prospective plaintiff seeking disclosure from the City prior to a 50-h hearing — in other words, after a notice of claim had already been filed. The Barillaro court reasoned that permitting disclosure would “level the playing field in that the petitioner will have the opportunity to view footage, including footage of himself, leading up to the explosion” and “assist the petitioner in framing his complaint” (53 Misc 3d at 311-312). Neither justification applies here, particularly in the absence of any claim having been filed. However, as no Respondent opposes preservation, that remedy is appropriate. To the extent that Petitioner, in reply, argues that preservation is insufficient because “crucial evidence may be lost” (Reply 12), that contention is speculative. It is therefore ORDERED and ADJUDGED that the Petition is GRANTED SOLELY TO THE EXTENT THAT Respondents shall preserve any evidence related to the subject incident, including but not limited to videos, photographs, reports, 911 calls, sprint records, and witness lists until May 26, 2022, or the conclusion of any litigation, including the exhaustion of any appeal, whichever is later; and it is further ORDERED that Petitioner shall, within 30 days, serve a copy of this order with notice of entry upon all parties. This constitutes the decision and order of the Court. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION GRANTED DENIED X GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: November 17, 2020
