Banco de Concepcion v. Manfra, Tordella & Brooke, Inc.

— Order, Supreme Court, New York County, entered September 14, 1978, denying preaction disclosure and discovery, modified, on the law, on the facts, and in the exercise of discretion, to the extent of directing respondents to disclose within 20 days after service of a copy of this court’s order with notice of entry thereof with regard to certain numbered accounts the names and addresses of their owner or owners, individual or corporate, and the names and addresses of whomever their records disclose to have an interest in the accounts, and otherwise affirmed, without costs. Banco de Concepcion (applicant), a banking corporation organized and existing under the laws of the Republic of Chile, moved by order to show cause pursuant to CPLR 3102 (subd [c]) for an order directing the officers of three banking institutions, the respondents, to appear for deposition and to produce documents which, inter alia, related to the identities of persons who maintain at their institutions numbered accounts into which were deposited checks issued by the applicant. As developed in an affidavit submitted by counsel, the essential facts of which are not effectively disputed, the applicant was the victim of an apparent swindle perpetrated by a man named Zamora. During December, 1976 and January, 1977, Zamora initiated a series of transactions by which he exchanged checks drawn on his personal accounts or accounts he controlled for bank checks drawn upon applicant’s accounts in New York City. Zamora’s checks were all returned over a period of time for insufficient funds. Eight of the petitioner’s checks, made payable to three separate payees, were deposited in varying numbered accounts at the respondents’ institutions. One check bears the notation that it was deposited for "credit to Travelsa.” Of the three named payees, only one is known to be an existing person, and he denies that he indorsed the check or had any knowledge or involvement in' the transactions. Applicant lacks knowledge of the true identity of the other two payees and also has no information concerning Travelsa or its employees or officers. The deposition of respondents’ officers, and the accompanying demand for the production of bank records relating to the numbered accounts, are alleged by applicant to be in aid of bringing an action and necessary for that purpose. Respondents deny that Zamora, Travelsa or any of the named payees are known to them to have any relationship to the numbered accounts or to have any interest in any other account. The owners of the numbered accounts are said to be citizens of a *841foreign country. The application was resisted on the grounds that (1) the applicant failed to establish the existence of a cause of action; (2) the requested relief would breach confidential relationships; and (3) the demand for documents to be produced at the deposition was in any event too broad. Although concluding that the applicant failed to demonstrate a good cause of action, Special Term nonetheless granted the application to the extent of requiring respondents to appear at an examination before trial for the limited purpose of enabling applicant to ascertain whether Zamora and the named payees are customers of their banks and whether any of those individuals, to the knowledge of the banks and its representatives, are associated with Travelsa. The moving papers fairly indicate that the applicant may have a good cause of action, and is not merely seeking to determine whether it has one. (See Matter of Roland [Deak], 10 AD2d 263, 264-265; 3A Weinstein-Korn-Miller, NY Civ Prac, par 3102.14.) It may well be that the owners of the accounts will prove to be wholly innocent, but the circumstance that varied checks representing a large part of the proceeds of a fraudulent scheme were deposited in numbered accounts adequately meets the requirements of CPLR 3102 (subd [c]) that there be an existing cause of action. Under these circumstances, the claim of confidentiality is unavailing. (Cf. Banco Frances e Brasiliero S. A. v Doe, 36 NY2d 592; Matter of Roland [Deak], supra; 3A Weinstein-Korn-Miller, NY Civ Prac, par 3102.12.) Accordingly, applicant is entitled to learn from respondents the names and addresses of the owners of the numbered accounts and of those disclosed by the bank records to have an interest in them. This additional disclosure may be made at the deposition previously directed at Special Term or may take any other appropriate form. In other respects the disclosure sought went well beyond the appropriate purposes served by preaction disclosure and to that extent Special Term quite correctly denied the requested relief. Concur —Sandler, Bloom and Ross, JJ.