Discovery in aid of arb CPLR 3102(c)

CPLR § 3102 Method of obtaining disclosure
(c) Before action commenced

Matter of Matter of Progressive N. Ins. Co. v Foss, 2012 NY Slip Op 04757 (2nd Dept. 2012)

The petitioner commenced this proceeding to temporarily stay arbitration of a claim for supplementary uninsured/underinsured motorist (hereinafter SUM) benefits pending the completion of certain discovery permitted by the subject insurance policy. The Supreme Court improvidently exercised its discretion in granting the petition to the extent of staying the arbitration pending the completion of certain discovery, and denying the appellants' motion to dismiss the petition. The petitioner had ample time to seek the desired discovery before commencing the proceeding, and unjustifiably failed to do so (see Matter of Government Empls. Ins. Co. v Mendoza, 69 AD3d 623, 624-625; Matter of State-Wide Ins. Co. v Womble, 25 AD3d 713, 713-714; Matter of New York Cent. Mut. Fire Ins. Co. v Gershovich, 1 AD3d 364, 365; Matter of Government Empls. Ins. Co. v Rosenfarb, 306 AD2d 478, 478-479).


Matter of Progressive Specialty Ins. Co. v Alexis, 90 AD3d 933 (2nd Dept., 2011)

The Supreme Court properly denied that branch of the petition which was to direct disclosure in aid of arbitration pursuant to CPLR 3102 (c), as the petitioner failed to demonstrate that "extraordinary circumstances" existed such that this relief would be absolutely necessary for the protection of its rights (De Sapio v Kohlmeyer, 35 NY2d 402, 406 [1974] [internal quotation marks omitted]; see Matter of Government Empls. Ins. Co. v Morris, 83 AD3d 709, 710 [2011]; Matter of Travelers Indem. Co. v United Diagnostic Imaging, P.C., 73 AD3d 791, 791-792 [2010]).

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