Utilizing CPLR 3102(c) Pre-Action Discovery in the Article 78 Proceedings – Can’t Go Fishin’

August 31, 2020

Last February, in Dreyer v Stachecki, 2020 NY Slip Op 50134(U), the Suffolk County Supreme Court denied an unopposed motion for pre-action discovery. CPLR Section 3102(c) authorizes disclosure – prior to commencement – to aid in bringing an action or proceeding. In this case, the petitioner-movant sought the production of documents and depositions in anticipation of his challenges to certain land use determinations.

Within the Town of Southampton (“Southampton“), the petitioner owns a home adjacent to a 20-acre parcel owned by one of the respondents. In April 2019, Southampton’s Department of Land Management issued the respondent a certificate of occupancy (“CO“) for a pre-existing, non-conforming use for the receipt of natural organic waste (trees, brush, stumps, leaves and other clearing debris). Notably, Southampton Town Code Section 330-167 permits the Zoning Board of Appeals (“ZBA“) to approve a change from one non-conforming use to another if certain criteria are met.

The petitioner alleged the owner of the 20-acre parcel planned to convert use of the premises from non-conforming waste receipt to a 120-unit condominium development, and that – in furtherance thereof – the respondents signed false affidavits to procure the CO. He anticipated bringing an action and/or proceeding seeking, among other things, to prevent the development. The petitioner contended that pre-action discovery was necessary to obtain information to demonstrate the falsity of the affidavits. He also argued it was necessary to obtain the information before the Southampton ZBA considered the change of use, and before the Southampton ZBA and Planning Board considered the application for construction of the development.

The Court denied the petitioner’s motion. “Pre-action disclosure can be used to enable the plaintiff to frame a complaint, to preserve evidence for a forthcoming lawsuit, and to ascertain the identities of prospective defendants. [It] may not be used to ascertain whether a prospective plaintiff has a cause of action worth pursuing.” Further, the Court should only grant such relief where the movant demonstrates he or she has “a meritorious cause of action and that the information sought is material and necessary to the actionable wrong.” Put another way, the movant “must allege facts fairly indicating that he [or she] has some cause of action.”

Here, the petitioner failed to demonstrate he had a meritorious claim. He did not submit an affidavit of someone with personal, first-hand knowledge of facts establishing a cause of action; rather, he relied solely upon a verified petition and affirmation of counsel consisting of unsubstantiated conclusory allegations regarding his theory of the case. In denying the petitioner’s motion, the Court emphasized that “[p]re-action discovery is not permissible as a fishing expedition to ascertain whether a cause of action exists.”