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Matter of Fox

Requiring search for bridge collapse evidence, court commends quality of attorneys' conduct.

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Justice Julian

MATTER OF THEODORE FOX, JR. — CPLR §3102(c) is a flexible device permitting limited discovery pre- action, in order that proper parties to litigation be identified and essential evidence be preserved. It provides, inter alia, “ 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 phrase “ to preserve information” has been interpreted to mean “perpetuate testimony”. See Commentary C3102:5, McKinney’s CPLR §3102. Nevertheless, since every disclosure device is in fact available pre-action(See Commentary C3102:7), temporary relief preventing the destruction of evidence to be disclosed is necessarily also available, and the statute has been used to order such preservation, even as to public entities: Thomas v. New York City Transit Police Dept. 91 A.D.2d 898, 457 N.Y.S.2d 518 [1st Dept. 1983]; O’Grady v. City of New York, 164 Misc.2d 171, 624 N.Y.S.2d 337 [NY Sup. 1995]. This motion for pre-action discovery arises out of the October 10, 2002 collapse of a bridge that was under construction in the proximity of NYS Route 49 in Marcy, New York. All parties agree that the collapse resulted in death, injury, and substantial property loss.

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