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Posted: January 28, 2017

Pre-Action Discovery Not Available to Revive Already-Dismissed Action

On January 11, 2017, Justice Oing of the New York County Commercial Division issued a decision in Culligan Soft Water Co. v. Clayton Dubilier & Rice, LLC, 2017 NY Slip Op. 30074(U), holding that a litigant could not use pre-action discovery to revive an already-dismissed action, explaining:

[P]laintiffs seek an order compelling discovery from the Lender Defendants under the guise of pre-action disclosure. Given the procedural history of this action, this effort is misplaced.

CPLR 3102(c) provides:

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. The court may appoint a referee to take testimony.

Plaintiffs cannot rely on CPLR 3102(c) because they are not able to satisfy its pre-condition to such disclosure, namely, “before an action is commenced.” Here, they do not seek pre-action disclosure to aid in drafting their original complaint, but, instead, seek such disclosure to draft their Fourth Amended Complaint. This fact alone precludes plaintiffs’ use of CPLR 3102(c).

In any event, even if CPLR 3102(c) were available, plaintiffs would still not be entitled to the disclosure they seek pursuant to this provision. While pre-action disclosure may be appropriate to identify potential defendants, it may not be used to ascertain whether a prospective plaintiff has a cause of action worth pursuing or”to explore alternative theories of liability. Furthermore, to obtain an order for pre-action disclosure, the party moving for such relief must demonstrate that he or she has a meritorious cause of action, and that the information sought is material and necessary to the actionable wrong. Here, plaintiffs do not meet this burden. In their memorandum of law, plaintiffs conclusorily argue, without citing to any supporting affidavit or evidentiary facts, that the requested materials prove, inter alia, the culpability of the CDR Defendants, as well as the liability of the accountants, lawyers, and other professionals who may have given Culligan
Limited faulty advice to identify proper parties to be named, or excluded, as defendants, and will provide additional information to prove that they are, in fact, the proper plaintiffs in this action. Under these circumstances, plaintiffs are essentially seeking pre-action disclosure to determine whether they have a cause of action worth pursuing against the CDR Defendants and other third parties, and to explore alternative theories of liability, which are improper uses of CPLR 3102(c).

(Internal quotations and citations omitted).

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