PEREZ v. NEW YORK PRESBYTERIAN HOSPITAL (2006)

The petitioners request that the court sign an order to show cause, based upon an underlying petition for pre-action discovery (CPLR 3102 [c] ).

The petition asserts that petitioners contemplate bringing an action sounding in assault, battery and false arrest.   It requests an order directing that the respondent hospital produce surveillance videotapes taken at a time when one or both petitioners were arrested, and also “all arrest records and any record or material that would be considered Rosario material.”   The latter phrase appears to refer to the production of exculpatory material under principles enunciated in People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 (1961), and suggests that the criminal proceedings may not yet be concluded.

In relation to the petition for pre-action discovery, it is well established that courts of limited jurisdiction do not have jurisdiction to hear all such requests.   For example, in Matter of Estate of Wallace, 239 A.D.2d 14, 667 N.Y.S.2d 768 (3d Dept.1998), it was held that Surrogate's Court's had no jurisdiction over an application by an administrator for pre-action disclosure to aid in bringing a future wrongful death action.   The Appellate Division, Third Department explained:

“Surrogate's Court lacks subject matter jurisdiction to entertain wrongful death claims [citations omitted]․ [I]t necessarily follows that Surrogate's Court lacked the authority to grant the incidental relief [of pre-action discovery] sought by petitioner (see, Siegel and Connors, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 58A, SCPA 202, at 114-116).   Under the circumstances, Surrogate's Court should have transferred the matter to Supreme Court (see, N.Y. Const., art. VI, § 19[d] ).”  (239 A.D.2d at 16, 667 N.Y.S.2d 768.)

This Third Department case has been recognized as indicating that a petition for pre-action discovery may only be brought in a court which has subject matter jurisdiction over the claim later to be asserted (Robert A. Barker, Disclosure Before an Action:  Warsaw Convention, N.Y.L.J. July 20, 1998, p. 3, col. 1).

 This distinction is particularly important in relation to the Civil Court of the City of New York because, if 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 (New York State Constitution Article VI, Section 15[b];  European-American Banking Corp. v. Chock Full O'Nuts Corp., 109 Misc.2d 615, 620, 442 N.Y.S.2d 715 [App. Term 1st Dept.1981], “the Civil Court has clearly circumscribed and limited equitable powers”;  Sterling National Bank v. Kings Manor, LLC, 9 Misc.3d 1116(A), 2005 WL 2464167, *7, 2005 N.Y. Slip Op. 51604(U) [Civ.Ct. N.Y. Co.2005, Lebedeff, J., collecting cases] ).   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 pre-action discovery under CPLR 3102(c)-would be properly presented to the Civil Court (N.Y.CCA § 1101[a], “The procedures set forth in the CPLR relative to disclosure ․ shall govern in this court”).

 Nothing in this petition indicates that the Civil Court will have subject matter jurisdiction over this matter and, accordingly, the court declines to sign the order to show cause.   Should petitioners desire to do so, they may submit amended papers for consideration stating that the case would be commenced in Civil Court or petitioners may request the transfer of this matter to Supreme Court, albeit the latter process might well involve delays (Sterling National Bank v. Kings Manor, LLC, supra, 2005 WL 2464167 at *8).   If either step is taken, petitioners' counsel is asked to clarify whether criminal charges remain pending and advise whether service of a copy of the petition upon the New York County District Attorney's Office would be appropriate.

This decision constitutes the order of the court.

DIANE A. LEBEDEFF, J.