Category: CPLR § 408

Respondent operates a pizzeria at the base of the world-famous Empire
State Building. It is obligated to pay for electricity pursuant to a
complex formula. Recently, petitioner's bills to respondent for
electricity have "gone through the roof." Respondent has refused to
pay, and petitioner has commenced the instant non-payment proceeding.
For a variety of reasons (and without casting any blame), the case has
been on the calendar on many occasions, and is getting rather old for a
"summary" proceeding. Respondent now moves for discovery, seeking, most
significantly, a deposition of petitioner's electrical consultant and,
also, a bill of particulars and documents.

Discovery is available in summary proceedings only upon a showing of "ample need." CPLR 408; Antillean Holding Co. v Lindley,
76 Misc 2d, 1044, 1047 (Civ Ct, NY County 1973) (Kassal, J.).
Respondent argues, not without some merit, that the "ample need" here
is that without, at least, a deposition, respondent will not know how
to defend against petitioner's case [*2]because it does not know how petitioner is calculating the charges, and the justifications therefor.

…

Furthermore, although this Court has studiously avoided, heretofore,
using the term "expert," respondent is, essentially, attempting to
depose petitioner's expert witness, for which the CPLR does not
provide. Moreover, respondent's proposed Demand for Verified Bill of
Particulars and Combined Discovery Demands are rejected in their own
right as they are improperly broad and vague.


In the final analysis, respondent will have many opportunities
to understand and defend against petitioner's claim for electrical
charges, without "ample need" for pre-trial disclosure, other than as
provided for herein.

Thus, the instant motion is denied, conditional on
petitioner's producing to respondent, by 3/26/09, all of the documents
related to electrical charges that petitioner intends to produce at
trial; respondent may request a continuance at the end of petitioners'
case, the granting of which will be completely at the discretion of the
trial judge; and the parties are directed to appear in Part [*3]52, Room 1166, on 4/7/09, at 9:30 AM, for all purposes, including trial.