Upon the foregoing papers, it is hereby ordered that the instant motion is denied, as set forth more fully herein, and the parties are directed to appear in Part 52, Room 1166, on 4/7/09, at 9:30 AM, for all purposes, including trial.

The instant motion has been well-briefed and well-argued. The issue is close. After careful consideration, this Court believes the better course here is to deny the motion and have the case proceed to trial.

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.

However, in this Court's view, respondent has a whole host of defense mechanisms, such that it need not require the parties to spend time and money on disclosure and delay the prosecution of this aging case.

First, petitioner has already produced a ream of documents and an explanatory affidavit addressing the subject charges. Indeed, today's decision (which is being forwarded to counsel forthwith) is expressly 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. Second petitioner will, of course, on its direct case, have to present a comprehensible justification for the subject charges or be subject to an adverse directed verdict. Third, respondent will have an opportunity to cross-examine petitioner's electrical witness(es). Fourth, respondent may request a continuance at the end of petitioners' case, albeit the granting of any such continuance will be completely at the discretion of the trial judge. Fifth and finally, respondent will be entitled to examine its own electrical "consultant" when it presents its case. With such a battery of defenses, this Court sees no "ample need" for yet another layer.

Respondent understandably relies on Pamela Equities Corp. v Louis Frey Co, Inc., 120 Misc 2d 281 (Civ Ct, NY County 1983) (Saxe, J.) (Moving Exh. F). Pamela is, indeed, rather similar to the instant case, and Judge (now Justice) Saxe, in a ringing endorsement of fair adjudication, ordered document production and a deposition. That case involved electric charges and operating expenses (based on porters' wages) and taxes. Thus, it may have been more complex than the instant one. Also, there is no indication that in that case there were any documents (or an affidavit) produced prior to the motion. However, to the extent that that case is on "all threes" with this one, this Court simply sees the matter differently from the way Judge Saxe (currently an Appellate Division, First Department Justice) did, perhaps in part because of a changed economic climate, and perhaps also based on subtle changes in legal philosophy over the past 26 years.

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.

Dated:March 12, 2009

Arthur F. Engoron, J.C.C.