No action has been commenced herein, but the moving party brings on this application by way of notice of motion in which it designates itself as plaintiff and the defendant is named "John" Givens, and requests this court to direct the New York Telephone Company to furnish plaintiff with the name and address of one of its subscribers who either now has or had a nonpublished (unlisted) telephone number.
The better practice for plaintiff to have adopted was to have applied ex parte to the Judge presiding at Special Term, Part II, for an order directing New York Telephone Company to show cause why the desired information should not be disclosed to plaintiff.
However New York Telephone Company has appeared herein in response to plaintiff's notice of motion and in order to avoid further litigation, the court will entertain plaintiff's application as if it had been made as herein indicated. Such an application is proper and may be made pursuant to CPLR 3102 (subd. [c]).
Let this be understood that this is not an application to review any action of this public utility or any rule or regulation of the Public Service Commission. This is not a proceeding pursuant to CPLR article 78. This is an application on the part of plaintiff to compel this telephone corporation to disclose the name and address of its subscriber to a nonpublished telephone number so as to enable plaintiff to commence action.
The New York Telephone Company vigorously opposes plaintiff's motion.
It is alleged that, between the months of November and December, 1968, a person using the facilities of a nonpublished number, to wit, 222-4078, placed orders for advertising for publication in plaintiff's newspaper and furnished the name and address to plaintiff as "L. Givens, 351 West 120th Street, Apt. 4, New York."
Plaintiff asserts that mail addressed to the name "L. Givens" at the address above stated has been returned as "unknown" and in addition thereto telephone calls to the nonpublished number 222-4078, the telephone number over which it is alleged that the orders for advertising were placed, results "simply in the party who answers hanging up immediately."
New York Telephone Company cites as legal authorities in support of its opposition to this application, Matter of Leighton v. New York Tel. Co. (184 Misc. 827) and Freedom Finance Co. v. New York Tel. Co. (29 A.D.2d 545).
Matter of Leighton v. New York Tel. Co. (supra) deals with the refusal of New York Telephone Company to furnish telephone instruments service and equipment to petitioner who, during World War II, was one of 75,000 residents within the territory served by this public utility. There, the court held that it was the Public Service Commission, the public authority, which had jurisdiction in the first instance because the Public Service Commission is charged by statute to supervise the operation of telephone corporations with respect to the adequacy of and accommodation afforded by their service and the court properly declined to assume jurisdiction and direct the telephone company to furnish to petitioner the desired service.
Freedom Finance Co. v. New York Tel. Co. (supra) is an action brought by plaintiff to enjoin the telephone corporation from discontinuing its telephone number. There the court held that plaintiff did not have a proprietary right to retain the subject telephone number.
This court does not disagree with the cited authorities; they are, however, inapplicable on this motion before the court.
New York Telephone Company contends further that it may not disclose the name and address of its nonpublished subscriber by reason of its rule or regulation filed with the Public ...