Ronald Gomez, petitioner and potential plaintiff, moves for an order pursuant to CPLR §3102[c] for an order granting pre-action disclosure with respect to the following: inspection of a certain conveyor belt located at the UPS facility at 300 Oak Street, Uniondale, New York; and any operating manuals, maintenance manuals and safety manuals relevant to the subject conveyer belt.

Mr. Gomez, an employee of the respondent, United Parcel Service of America, Inc., (hereinafter UPS), was injured on November 7th, 2005, while loading packages into a UPS trailer. In furtherance thereof, Mr. Gomez was utilizing a portable conveyor belt to transfer packages from the loading platform to the trailer. Mr. Gomez avers that in order to prevent certain packages from falling off the conveyor belt, it became necessary to adjust it and to align it "to be flush with the wall of the loading dock". While in the process of making this adjustment, a co-worker of Mr. Gomez turned the conveyor belt on causing Mr. Gomez to lose the middle and index

fingers of his right hand. Mr. Gomez avers that he is unaware of the manufacturer of the subject [*2]conveyor belt. (Gomez Affidavit at ¶¶ 9, 11 & 13).

The respondent, United Parcel Service of America, Inc., agrees to have the inspection but objects to document disclosure at this time.

CPLR §3102[c] provides for pre-action disclosure via a court order. In considering such an application, the court is empowered with the discretion to grant such a request "to aid in bringing an action [and] to preserve information . . ." and to permit discovery to allow a potential plaintiff to procure the identity of prospective defendants and to frame the complaint. (Stewart v The New York City Transit Authority, 112 AD2d 939).

However, pre-action disclosure is not available to a potential plaintiff for the purposes of determining whether in fact a cause of action exists. ( Stewart v The New York City Transit Authority, supra).

The instant application is granted to the following extent. An inspection of the subject conveyor belt located at the UPS facility at 300 Oak Street, Uniondale,

New York, is hereby ordered to take place, within the next ten (10) days, at a time mutually agreed upon, and in the presence of all prospective parties and their respective counsel.

Any additional discovery demands contained in the instant application are granted only as hereinafter specified.

There will be no destructive testing of any item whatsoever. However, counsel and their representatives may take measurements and photographs, as well as videotape the general accident area and the machine in operation, unless it is no longer being used for regular purposes. If the machine, designated as a portable conveyor belt, is not currently being used on a daily basis, then the Court is not directing that it be activated or turned on.

The respondent will identify all records in its possession, either kept or stored at the accident side or elsewhere, concerning the purchase, lease, transfer, ownership, operation, maintenance, and control of the machine involved, including any correspondence related thereto.

Certified copies of all the above will be made for the Court, together with an affidavit of a responsible corporate supervisor or manager, which will attest to the

completeness of said records, as well as to the manner and methodology of the records search conducted, whether at the accident site or elsewhere.

Said affidavit and records will be delivered in a binder in a sealed envelope to Chambers within 30 days herefrom for in-camera review prior to potential release to petitioner's counsel. The submitted records will be preceded by an index page and they will be separated (using tabs) by appropriate categories for ease of review by the Court. [*3]

Any claim being asserted with respect to proprietary intellectual property, attorney-client privilege, and/or attorney work product, should be clearly identified in the index page.

In addition, pre-redacted pages related to any such privilege assertions must also be submitted in a separate binder. These records must also be appropriately indexed and cross-referenced to the first binder which has the unredacted pages.

The respondent is further ordered to preserve and maintain all above-described records, as well as the machinery itself, as they are at this time, with no changes, modifications, deletions, insertions, alterations, or repairs, pending further order of this Court. This Order also applies to the preservation of all relevant computer hardware, software, and e-mails which may have relevance hereinabove.

Furthermore, both counsel will appear for Conference at chambers on

May 9, 2006, at 9:30 A.M.

There will be no adjournment of this Conference, nor any delay in complying with any of the provisions hereinabove, without the further specific written authorization of the Court. In the interim, the Court remains available for expedited telephone conference with counsel on fax or telephone request. No advocacy positions are to be advanced in any such communications, but merely that a request for conference is being made. Compliance herewith will not be deemed an impermissible ex parte communication. Counsel are ordered to confer between themselves to resolve and narrow issues prior thereto.

Petitioner's counsel is permitted to serve this Order by facsimile, and by regular mail, and to file proof of service hereof.

It is so Ordered.

Dated: April 10, 2006

HON. LAWRENCE J. BRENNAN

Acting Supreme Court Judge