In the Matter of Mark Leff, as the parent and natural guardian of "E. L., " a minor, et al., respondents,
Our Lady of Mercy Academy, appellant. Index No. 4703/15
Connell Foley LLP, New York, NY (Michael J. Crowley of
counsel), for appellant.
Wickham, Bressler & Geasa, P.C., Mattituck, NY (Eric J.
Bressler of counsel), for respondents.
REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, ROBERT J.
MILLER, BETSY BARROS, JJ.
DECISION & ORDER
proceeding pursuant to CPLR 3102(c) to obtain pre-action
disclosure, the appeal, as limited by the brief, is from so
much of an order of the Supreme Court, Nassau County (Parga,
J.), dated January 26, 2016, as granted the petition to the
extent of directing the appellant to disclose the names of
the individuals who provided it with a certain photograph and
who identified the infant E.L. as the subject of the
that the order is affirmed insofar as appealed from, with
proceeding for pre-action disclosure pursuant to CPLR 3102(c)
was brought on behalf of a minor identified as
"E.L." E.L. was a high school student at the
appellant's school (hereinafter the school).
petition included the following allegations: an unidentified
individual at the school widely disseminated an intimate
photograph depicting an unclothed portion of E.L.'s body
to students and faculty at the school, and identified E.L. as
the subject of the photograph. The unidentified individual
had no justification or legitimate purpose for identifying
E.L. in the photograph or for disseminating it throughout the
school. The unidentified individual committed these acts for
the purpose of inflicting severe emotional distress on E.L.
and inciting the school to discipline her. E.L. did, in fact,
suffer severe emotional distress as a result of the
dissemination, and the school did, in fact, threaten E.L.
with expulsion after it was provided with the photograph and
identifying information. E.L. was forced to withdraw from the
school in order to avoid expulsion. This dissemination
occurred not only at the school, but at the two high schools
that E.L. attended since withdrawing from the school, and the
photograph and identifying information had been widely
disseminated throughout the community.
petitioners sought, inter alia, pre-action disclosure limited
to the names of any individual who provided the school with
the photograph and who identified E.L. as the subject of the
photograph. The school opposed the petition, arguing, among
other things, that the petition failed to allege facts that
would constitute a cognizable cause of action against the
unidentified individual. In the order appealed from, the
Supreme Court granted the petition to the extent of directing
the school to disclose the names of the individuals who
provided it with the photograph and who identified E.L. as
the subject of the photograph. We affirm the order insofar as
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" (CPLR 3102[c];
see Matter of Konig v CSC Holdings, LLC, 112 A.D.3d
934, 935). "[D]isclosure to aid in bringing an
action' (CPLR 3102 [c]) authorizes discovery to allow a
plaintiff to frame a complaint and to obtain the identity of
the prospective defendants" (Matter of Stewart v New
York City Tr. Auth., 112 A.D.2d 939, 940; see East
Hampton Union Free School Dist. v Sandpebble Bldrs.,
Inc., 66 A.D.3d 122, 129, affd 16 N.Y.3d 775).
However, pre-action disclosure "may not be used to
determine whether the plaintiff has a cause of action"
(Siegel, NY Prac § 352 at 591-592 [5th ed]; see
Matter of Stewart v New York City Tr. Auth., 112 A.D.2d
at 940). This limitation is "designed to prevent the
initiation of troublesome and expensive procedures, based
upon a mere suspicion, which may annoy and intrude upon an
innocent party" (Matter of Houlihan-Parnes, Realtors
[Cantor, Fitzgerald & Co.], 58 A.D.2d 629, 630;
see Matter of Stewart v New York City Tr. Auth., 112
A.D.2d at 940). "Where, however, the facts alleged state
a cause of action, the protection of a party's affairs is
no longer the primary consideration and an examination to
determine the identities of the parties and what form or
forms the action should take is appropriate" (Matter
of Houlihan-Parnes, Realtors [Cantor, Fitzgerald &
Co.], 58 A.D.2d at 630; see Matter of Stewart v New
York City Tr. Auth., 112 A.D.2d at 940; see
also Siegel, NY Prac § 352 at 591-592 [5th ed]).
Accordingly, "[a] petition for pre-action discovery
limited to obtaining the identity of prospective defendants
should be granted where the petitioner has alleged facts
fairly indicating that he or she has some cause of
action" (Matter of Konig v WordPress.com, 112
A.D.3d 936, 936; see Matter of Konig v CSC Holdings,
LLC, 112 A.D.3d at 935; Matter of Toal v Staten Is.
Univ. Hosp., 300 A.D.2d 592, 592).
the disclosure sought in the petition was limited to
obtaining the identity of the prospective defendants in the
contemplated action. Contrary to the school's arguments,
there was no request by the petitioners for any other
information relating to the school's internal
investigation of E.L.'s alleged violation of the
school's code of conduct. Furthermore, the petition set
forth a proposed cause of action for which disclosure was
needed. In this regard, the petition alleged that an action
could be maintained on behalf of E.L. against the unknown
individual to recover damages for, among other things,
intentional infliction of emotional distress.
New York law, a cause of action alleging intentional
infliction of emotional distress "has four elements: (i)
extreme and outrageous conduct; (ii) intent to cause, or
disregard of a substantial probability of causing, severe
emotional distress; (iii) a causal connection between the
conduct and injury; and (iv) severe emotional distress"
(Howell v New York Post Co., 81 N.Y.2d 115, 121;
see Taggart v Costabile, 131 A.D.3d 243, 249). In
support of its argument that the petition failed to allege
facts that would constitute a cognizable cause of action
against the unidentified individual, the school contends that
the petition failed to adequately allege extreme and
element of outrageous conduct "serves the dual function
of filtering out petty and trivial complaints that do not
belong in court, and assuring that plaintiff's claim of
severe emotional distress is genuine" (Howell v New
York Post Co., 81 N.Y.2d at 121, citing William L.
Prosser, Insult and Outrage, 44 Cal L Rev 40, 44-45
). " Liability has been found only where the
conduct has been so outrageous in character, and so extreme
in degree, as to go beyond all possible bounds of decency,
and to be regarded as atrocious, and utterly intolerable in a
civilized community'" (Murphy v American Home
Prods. Corp., 58 N.Y.2d 293, 303, quoting Restatement
[Second] of Torts § 46, Comment D; see Marmelstein v
Kehillat New Hempstead: Rav Aron Jofen Community
Synagogue, 11 N.Y.3d 15, 22-23; Taggart v
Costabile, 131 A.D.3d at 249-250). Indeed, "where
severe mental pain or anguish is inflicted through a
deliberate and malicious campaign of harassment or
intimidation, a remedy is available in the form of an action
for the intentional infliction of emotional distress"
(Nader v General Motors Corp., 25 N.Y.2d 560, 569;
see Vasarhelyi v New School for Social Research, 230
A.D.2d 658, 661). Here, assuming the truth of the facts
alleged in the petition, the acts complained of could be
found by a trier of fact to amount to extreme and outrageous
conduct which cannot be tolerated in a civilized community
(see Sawicka v Catena, 79 A.D.3d 848, 849-850;
see also Dana v Oak Park Marina, 230 A.D.2d 204,
209; cf. Vasarhelyi v New School for Social
Research, 230 A.D.2d at 661; Kaminski v United
Parcel Serv., 120 A.D.2d 409, 412).
light of the foregoing we need not determine whether the
petition states any additional causes of action. Furthermore,
the school's remaining contentions are either without
merit or improperly raised for the first time on appeal.
since the petitioners have limited their requested disclosure
to obtaining the identity of prospective defendants and have
alleged facts fairly indicating that they have a cause of
action, the Supreme Court properly granted the petition to
the extent of directing the school to disclose the names of
the individuals who provided it with the photograph and
identified E.L. as the subject of the photograph
(see CPLR 3102[c]; Matte ...