WESTERN INVESTMENT LLC v. GEORGESON SHAREHOLDER SECURITIES CORPORATION (2007)

Supreme Court, Appellate Division, First Department, New York.

WESTERN INVESTMENT LLC, Petitioner-Appellant, v. GEORGESON SHAREHOLDER SECURITIES CORPORATION, et al., Respondents-Respondents.

Decided: August 16, 2007

TOM, J.P., MAZZARELLI, SULLIVAN, GONZALEZ, McGUIRE, JJ.

Olshan Grundman Frome Rosenzweig & Wolosky LLP, New York (Thomas J. Fleming and Herbert C. Ross, Jr. of counsel), for appellant. Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York (Allan J. Arffa of counsel), for respondents.

Order, Supreme Court, New York County (Karen S. Smith, J.), entered December 7, 2006, which denied petitioner's application for pre-action discovery except to the extent of directing the preservation of certain information, unanimously affirmed, with costs.

Petitioner already had sufficient information to formulate its complaint. The only purpose of inspecting the file would be to explore alternative theories of liability, which is not a proper basis for invoking CPLR 3102(c) (Holzman v. Manhattan & Bronx Surface Tr. Operating Auth., 271 A.D.2d 346, 348, 707 N.Y.S.2d 159 [2000] ). On the face of petitioner's own showing, the court properly denied the application for such pre-action discovery except to the extent of directing the preservation of certain information.

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