Western Inv. LLC v Georgeson Shareholder Sec. Corp.

2007 NYSlipOp 06445

August 16, 2007

Appellate Division, First Department

As corrected through Wednesday, October 3, 2007

Western Investment LLC, Appellant, v Georgeson Shareholder Securities Corporation et al., Respondents.

—[*1]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 AD2d 346, 348 [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. Concur—Tom, J.P., Mazzarelli, Sullivan, Gonzalez and McGuire, JJ.