Matter of Uddin v New York City Tr. Auth.
2006 NY Slip Op 01717 [27 AD3d 265]
March 9, 2006
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 17, 2006

In the Matter of Lovely Uddin, Respondent,
New York City Transit Authority, Appellant.


Order, Supreme Court, Bronx County (Paul Victor, J.), entered August 8, 2005, which directed respondent to deliver documents for in camera inspection pursuant to a motion for discovery, unanimously reversed, on the law, without costs, and petitioner's application seeking pre-action disclosure denied.

Petitioner was waiting on the platform of a subway station when she fell onto the track and under a train, sustaining serious injuries. Her counsel demanded disclosure of the investigative file relating to the accident, and when respondent failed to furnish this information, petitioner moved by show cause order for pre-action production under CPLR 3102 (c). The motion court granted the application to the extent of directing delivery of the entire file for in camera inspection so it could decide which material should be disclosed. This was error.

"Before 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" (CPLR 3102 [c]). Thus, while pre-action disclosure may be appropriate to preserve evidence or to identify potential defendants, it may not be used to ascertain whether a prospective plaintiff has a cause of action worth pursuing (Matter of Gleich v Kissinger, 111 AD2d 130, 131-132 [1985]). "A petition for pre-action discovery should only be granted when the petitioner demonstrates that he has a meritorious cause of action and that the information sought is material and necessary to the actionable wrong" (Holzman v Manhattan & Bronx Surface Tr. Operating Auth., 271 AD2d 346, 347 [2000]). Here, petitioner's notice of claim already set forth the time, place and particulars of [*2]the accident. The only purpose of inspecting the file at this point would be to explore alternative theories of liability, which is not a proper basis for invoking CPLR 3102 (c) (id. at 347-348). Concur—Andrias, J.P., Friedman, Marlow, Catterson and Malone, JJ.