New York State Court of Claims

New York State Court of Claims

BOWEN v. THE STATE OF NEW YORK, #2007-028-534, Claim No. NONE, Motion No. M-72771


A motion for pre-action discovery (CPLR 3102[c]), seeking information necessary to commence lawsuits against two non-State defendants, is denied as having been brought in an improper forum.

Case Information

1 1.The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
BONINA & BONINA, P.C.BY: Andrea E. Bonina, Esq.
Defendant’s attorney:
BY: Ellen Matowik Russell, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 30, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Movant’s motion for pre-action discovery:

1. Notice of Motion and Supporting Affirmation of Andrea E. Bonina, Esq., with annexed Exhibits;

2. Affirmation in Opposition of Ellen Matowik Russell, AAG; and

3. Reply Affirmation of Andrea E. Bonina, Esq.

CPLR 3102(c) provides that “[b]efore an action is commenced, disclosure to aid in bringing an action . . . may be obtained, but only by court order.” By this motion, Movant, a mechanic employed by the New York State Office of Mental Health who was injured on October 19, 2006 while working at a construction site owned by the New York State Police, seeks to learn the identity of the telephone contractor working on the site and whose workers, it is alleged, knocked a heavy metal door over onto Movant, and the general contractor for the construction project. Counsel states that Movant intends to commence a lawsuit against these parties, in addition to an action against the site’s owner (the State of New York) based on Labor Law § 241(6), but that neither the accident report nor other information currently available to his client provides the identity of either the telephone contractor or the general contractor. The motion has been commenced in the Court of Claims, counsel states, because this is the only Court that would have jurisdiction over entities, such as the New York State Police, that possess “the necessary information to frame a proper complaint” (Bonina Affirmation, ¶ 7).

Counsel for the State of New York opposes the motion on the ground that Movant has made no showing that he was unable to obtain the relevant information in other ways and that, because he is an “employee of the State,” he cannot bring an action against the State, as his exclusive remedy is workers’ compensation. In response, Movant’s counsel does not dispute the applicability of workers’ compensation to any lawsuit brought against the State of New York but asserts that she has made a number of unsuccessful attempts to obtain the needed information. When she contacted an investigator from the New York State Police, she was told that the information could be released only upon court order.

Neither party has questioned, but the Court must, whether this motion can be heard by the Court of Claims. Movant has acknowledged being a State employee, and Movant’s counsel has implicitly agreed that workers’ compensation would be her client’s exclusive remedy against the State of New York in this situation. Defendants in the lawsuits for which pre-action discovery is being sought would be the general contractor for the construction project and the telephone contractor for that project, neither of which could be sued in this Court.

A petition for pre-action discovery may only be brought in a court that has subject matter jurisdiction over the claim later to be asserted (Perez v New York Presbyterian Hosp., 11 Misc 3d 722 [Civ Ct, NY County 2006], citing Matter of Wallace, 239 AD2d 14 [3d Dept 1998] [“Lacking jurisdiction over the underlying action, it necessarily follows that Surrogate's Court lacked the authority to grant the incidental relief sought by petitioner”] and Robert A. Barker, Disclosure Before an Action: Warsaw Convention, NYLJ July 20, 1998, p 3, col 1; see also Matter of Perry, 194 Misc 2d 458 [Sur Ct 2002]). As stated in Perez:
[I]f there is no contemplated future litigation in this court, such a petition stands as an isolated request for an injunctive order compelling the turnover of desired material. Absent any basis to view the request as related to discovery in a case to be commenced in this forum, the Civil Court lacks the power to issue injunctive relief. On the other hand, if there is an expressed intention stated to commence the future action in this court of limited jurisdiction, then the CPLR disclosure provisions-- including a petition for preaction discovery under CPLR 3102 (c)--would be properly presented to the Civil Court (CCA 1101 [a] [“The procedures set forth in the CPLR relative to disclosure. . .shall govern this court”]).
The same is true with respect to the Court of Claims in the situation presented here.

There is no merit to the contention that the motion must be commenced here because only the Court of Claims has jurisdiction over the State and its subdivisions, which possess the information sought. While only the Court of Claims has jurisdiction over actions against the State where the “essential nature” of the claim is to recover money (Safety Group No. 194--New York State Sheet Metal Roofing & Air Conditioning Contractors Assn, Inc. v State of New York, 298 AD2d 785 [3d Dept 2002] and cases cited therein), other courts, both State and Federal, have jurisdiction over the State for all other types of actions. This motion should be brought in the court or courts in which actions against the general contractor and telephone contractor would ultimately be commenced.

Movant’s motion is denied.

March 30, 2007
Albany, New York

Judge of the Court of Claims