Opinion
February 9, 1995
Appeal from the Supreme Court, New York County (Leland DeGrasse, J.).
Although CPLR 3102 (c) authorizes discovery to allow a plaintiff to obtain the identity of the prospective defendants, it cannot be used by a prospective plaintiff to determine whether he has a cause of action (Matter of Stewart v. New York City Tr. Auth., 112 A.D.2d 939). Rather, it is only available where the moving party demonstrates that he has a meritorious cause of action and that the information sought is material and necessary to the actionable wrong (Matter of Bliss v. Jaffin, 176 A.D.2d 106, 108). In the instant case, petitioner failed to establish that he has a viable claim of defamation against certain yet-unnamed people, as he failed to allege evidentiary facts of malice sufficient to overcome the common interest qualified privilege protecting any allegedly defamatory statements made about petitioner in confidential Incident Reports filed with the respondent corporation (Toker v. Pollak, 44 N.Y.2d 211; Lowinger v. Jacques, 204 A.D.2d 175). Thus, it was proper to deny petitioner's application for preaction discovery.
Concur — Sullivan, J.P., Wallach, Rubin, Ross and Tom, JJ.