Imre Zakarias v. Radio Patents Corporation Et Al‪.‬

In our opinion, the facts disclosed in plaintiff's affidavit indicate that he has sufficient information to enable him to draw a complaint without the examination which he seeks (New Rochelle Precision Grinding Corp. v. Marino, 9 A.D.2d 685, and cases cited). An examination will be denied where its object is to enable plaintiff to state the amount of damages, since damages can be estimated (Newman v. Potter, 201 App. Div. 335, 337; Kenerson v. Davis, 278 App. Div. 482). Moreover, plaintiff sets forth facts showing that this is a suit for an accounting. An examination to frame a complaint is not permissible in an action for an accounting (Pierce v. McLaughlin Real Estate Co., 121 App. Div. 501; Teall v. Roeser, 206 App. Div. 371). We are also of the opinion that the provisions of section 3101 et seq. of the Civil Practice Law and Rules have not changed the established rules. While the right to pretrial disclosure has been liberalized, ""there is a fair boundary to this process which ought to be respected when the purpose of the examination is to frame a pleading against the party to be examined"" (Stewart v. Socony Vacuum Oil Co., 3 A.D.2d 582, 583). Although the Stewart case was decided before the enactment of the Civil Practice Law and Rules, the above-stated rule is equally applicable now.