Article by Patrick J. Graham, Esq.

The Supreme Court of New York, New York County recently reaffirmed the purpose and scope of pre-discovery disclosure in a petition to disclose surveillance footage. In Villani v. Rite Aid of NY, Inc., 2022 NY Slip Op 32949 (September 2, 2022), petitioner, Joanna Villani, received a COVID-19 booster shot at a Rite Aid location in Manhattan. Villani, who had a history of vasovagal, requested to sit in the vaccination room so as to avoid standing and fainting, but she claimed that the Rite Aid pharmacy staff informed her that the area was too busy and that she would need to take a seat in the nearby “alcove area.” Thereafter, Villani claims that she began to feel faint and called out for help to no avail before standing up, passing out, and hitting her head on the pharmacy counter. As a result of the fall, she claimed to have suffer severe facial and eye injuries.

Villani filed a petition seeking disclosure of the in-store surveillance video capturing the incident prior to filing her complaint so that she could better frame the facts of her complaint. Specifically, Villani sought to identify which Rite Aid staff members were present at the time of the incident in order to name those staff members as defendants responsible for her injuries.

In response, Rite Aid of NY, Inc. argued that Villani’s request was an inappropriate pre-discovery disclosure request because Plaintiff’s complaint could adequately allege enough facts to initiate legal action without the need for the surveillance video prior to discovery.

The Supreme Court agreed with Rite Aid of NY, Inc. and denied Villani’s petition. In so ruling, the Court cited Holzman v. Manhattan and Bronx Surface Tr. Operating Auth., 271 A.D.2d 346, 347 (1st Dept. 2000) for the proposition that pre-action disclosure is not appropriate where a plaintiff already has sufficient information to frame a meritorious complaint. The Court specifically noted, “pre-action discovery is not permissible as a fishing expedition to ascertain whether a cause of action exists and is only available where a petitioner demonstrates that he or she has a meritorious cause of action and that the information sought is material and necessary to the actionable wrong…” Bishop v. Stevenson Commons Assocs., L.P., 74 A.D.3d 640, 641 (1st Dept. 2010).

The Court reasoned that Villani had all the information needed to file a meritorious complaint, including when the incident happened, where it happened and what details led to the incident taking place. Villani knew which defendant she would name in a complaint and which cause of action she would use to pursue her claims. Villani’s desire to identify specific Rite Aid employees would be better served through a plenary action for the disclosure of those names rather than the production of the surveillance video, which would be an inefficient means to identify those potential defendants. The Court noted that Villani’s request for the surveillance footage was nothing more than a normal discovery request that may, at most, require a letter to Rite Aid of NY, Inc. requesting that the video be preserved for later production in discovery.

Ultimately, the Court reaffirmed the purpose and scope of pre-action disclosure and petitions seeking the same as a means to identify facts and causes of action that will lead to a meritorious complaint when those facts and causes of action are not already known to a potential plaintiff. When those facts giving rise to a potential complaint and the causes of action to be used are already clear to a plaintiff, pre-action disclosure is neither necessary nor appropriate.