Decided June 26, 2008.
Thomas S. Fleishell Associates, P.C., New York City (Brandy A. Smith of counsel), for petitioner.
Karlsson Ng, P.C., New York City (Kent Karlsson of counsel), for respondents.
Petitioner moves by motion filed on April 29, 2008, to restore a 2006 proceeding last marked off the calendar on February 14, 2007. Respondents cross-move to dismiss. Petitioner also moves to have this court strike respondents' answer or, in the alternative, to issue an order directing respondents to comply with petitioner's document requests. Petitioner's motion to restore is granted, and this court orders respondents to produce the documents that petitioner requested. Petitioner's motion to strike and respondents' cross-motion to dismiss are denied.
The undisputed facts pertinent to the motions are as follows. This is a nonprimary-residence holdover proceeding. Petitioner-landlord terminated respondents-tenants' Stephen and Athena Parnassus's rent-controlled tenancy by a notice effective August 3, 2006. Stephen Parnassus, however, died many years before this proceeding was brought. Ms. Parnassus is 89 years old. Also named as respondents-undertenants were Diana Benton, John and/or Jane Doe, and Ms. Parnassus's granddaughter, Athena Kazantsis.
On November 11, 2006, the parties agreed to mark this proceeding off the calendar pending disclosure. On November 15, 2006, petitioner proposed a stipulation outlining the scope and time line for disclosure. By November 30, 2006, no response to petitioner's proposed stipulation had been received. Petitioner's counsel then sent a follow-up letter that included a document demand. This demand sought 34 items from Ms. Parnassus, Ms. Kazantsis, and Ms. Benton dating back to September 1, 2002.
In a letter dated December 8, 2006, respondents' counsel wrote petitioner's counsel that respondents were collecting the requested documents and would have them within a week. On December 28, 2006, petitioner's counsel received from respondents a few documents that represented only a few of the 34 requested items.
In a letter to respondents' counsel dated January 3, 2007, petitioner's counsel complained that respondents had not sent all the documents sought in the document demand and requested affidavits from respondents' stating that documents not produced did not exist. Having not received a response, petitioner moved on January 9, 2007, seeking, in part, leave to conduct disclosure of respondents as well as an order directing respondents to comply with petitioner's document request with dates for examinations before trial (EBTs). On February 14, 2007, the Hon. Peter M. Wendt approved a stipulation by which respondents agreed to produce by March 7, 2007, 33 of the 34 requested items as they pertained to Ms. Parnassus and Ms. Kazantsis. EBTs of both respondents were to take place by March 31, 2007. Under the February 14, 2007 stipulation the proceeding also was marked off the calendar pending disclosure. Respondent sent petitioner some additional documents pursuant to the stipulation. On March 6, 2007, Ms. Kazantsis and Ms. Parnassus sent sworn affidavits to petitioner's counsel to explain why any documents still not produced could not be obtained.
On May 8 and June 18, 2007, EBTs were conducted with Ms. Parnassus and Ms. Kazantsis, respectively. The transcript of Parnassus's EBT was sent to petitioner on July 19, 2007. On August 6, 2007, respondents' counsel wrote petitioner's counsel requesting the transcript of Ms. Kazantsis's EBT. Petitioner's counsel apologized for the oversight and complied immediately. By September 25, 2007, the EBT transcripts of Ms. Parnassus and Ms. Kazantsis were countersigned and returned by respondents.
In a letter dated November 12, 2007, petitioner's counsel wrote respondents' counsel claiming that the depositions had revealed that some documents requested had been sought by respondents but not obtained by the time of the EBT. Petitioner's counsel then sought these additional documents. In their response dated November 16, 2007, respondents agreed to produce only one of these documents and not the others. Respondents' counsel claimed that the withheld documents do not relate to this proceeding. Nothing further happened until April 16, 2008, when petitioner's counsel filed this motion. Respondents cross-moved to dismiss on May 9, 2008, seeking dismissal of the petition for failure to prosecute.
Respondents' Cross-Motion to Dismiss
Respondents' cross-motion seeks to dismiss the petition for failure to prosecute. Under 22 NYCRR 208.14 (c) of the New York City Civil Court's Uniform Civil Rules, actions "stricken from the calendar" may be restored by motion "within one year after the action is stricken." The First Department has interpreted "stricken" to include "marked off calendar." ( Centennial Restorations Co. v Wyatt, 248 AD2d 193, 196 [1st Dept 1998 mem].) Respondents argue that because the stipulation of February 14, 2007, represents the last time this case was marked off the calendar, petitioner's motion to restore the case is too late and Rule 208.14 (c) mandates dismissal.
Cases sought to be restored after being off the calendar for a year are not immediately dismissed in the New York City Civil Court. CPLR 3404 provides for mandatory dismissal of cases marked off the calendar and not restored within a year, but it is "well settled in the First Department" that CPLR 3404 does not apply in the Civil Courts "because [they] have their own rule on point . . . NYCRR 208.14 (c)." ( Ramirez v Mejia, NYLJ, July 6, 2006, at 26, col 1 [Hous Part, Civ Ct, NY County].)
Rule 208.14 (c)'s limiting restoration to cases "within a year" implies restrictions on cases marked off the calendar for over a year, but it does not contain the mandatory-dismissal language featured in CPLR 3404. Under Rule 208.14 (c), cases marked off the calendar for over a year are only presumed abandoned. ( Manhattan Mansions v Gonclaves, 2003 NY Slip Op 51445[U], *8, 2003 WL 22849767, at *3, 2003 NY Misc. LEXIS 1499, at *9 [Hous Part, Civ Ct, NY County 2003].) Petitioners may rebut this presumption if they can establish the following four elements: (1) meritorious cause of action; (2) reasonable excuse for delay in seeking to restore; (3) absence of prejudice to opposing parties; and (4) lack of intent to abandon the action. ( Kaufman v Bauer , 36 AD3d 481, 482 [1st Dept 2007 mem].) All four must be shown before the court may exercise its discretion to restore. ( Id.) This proceeding was last marked off the calendar on February 14, 2007, and the motion to restore was not made until April 16, 2008 — 14 months later. Petitioner's motion to restore may succeed only if the facts clear all hurdles of this four-part test.
The court rejects petitioner's argument that the court should use "the date of the deposition of the Respondent as the milestone" to measure time under Rule 208.14 (c). Petitioner argues for this interpretation because, if accepted, it would mean that less than one year has elapsed since the EBT of Ms. Kazantsis on June 16, 2007, and as such the court should restore the case to the calendar without applying the test outlined above. Petitioner relies on this court's hand-written ruling in Mayflower Development v Fine (Hous Part, Civ Ct, NY County, Apr. 5, 2006, Index No. 99120/03). The court disagrees with petitioner's interpretation of this case. This court's statement in Mayflower that "depositions were completed on 7/2/05" that and "[t]his satisfies 22 NYCRR 208.14 (c)" merely reflects the court's conclusion after considering Rule 208.14 (c)'s four-part test. The court referred to the depositions only to support the court's finding on prong four of the test that a lack of intent to abandon the proceeding was apparent. There was never any intention to change the milestone date under Rule 208.14 (c). As such, the four-prong test outlined in Kaufman applies to the present case.
Petitioner's cause of action cannot be found to be without merit under the first prong of the Rule 208.13 (c) test. The First Department has found that a meritorious claim is one in which the evidence presented is not conclusory and tends to establish a causal connection between a defendant's conduct and the plaintiff's cause of action. ( See Kaufman, 36 AD3d at 482.) For the purposes of this motion in the present proceeding, petitioner relies on respondents' EBT testimony. Ms. Parnassus's affidavit suggests that she might have been living in Greece for an extended period of time. Further, Ms. Kazantsis's affidavit suggests that both 2315 East York Street, Philadelphia, Pennsylvania, and 64 Prospect Lake Road, North Egremont, Massachusetts, are family homes. Both these exhibits support petitioner's initial claim that Ms. Parnassus was not using 305 Riverside Drive, Apartment 2A, as her primary residence. This court finds petitioner's claim to be meritorious for restoration purposes.
Turning to the test's second prong, petitioner's excuse for the delay is reasonable. A significant contributor to the 14-month wait was respondents' delay in returning the countersigned EBT transcripts. Although petitioner bears some fault for failing to inquire into the matter, respondents' counsel took more than two months to review, sign, and return the transcripts. After this, the most significant delay was the five months' inaction between respondents' letter of November 16, 2007, and petitioner's motion to restore. Even with this impasse, the case was off the calendar for only two months past the one-year limit, and much of the 14-month period featured disclosure with some delay on respondents' part. Petitioner's excuse that it advanced the litigation at a practical pace given respondents' response is reasonable.
As to the third prong of the test, respondents have not been prejudiced by the petitioner's delay in restoring this proceeding to the calendar. Respondents — and only through counsel — allege that the delay has negatively affected 89-year-old Ms. Parnassus's "ability to recall the details of her living arrangements." In Nunez v Resource Warehousing and Consolidation, the First Department rejected the tenant's claim that the passage of time standing alone impaired her ability to recall her past living habits. ( See 6 AD3d 325, 327 [1st Dept 2004 mem].) Were this court to accept respondents' contention, it would mean that nearly no case could be restored after being off the calendar for one year. It would be nonsensical for Rule 208.14 (c) to allow restoration of cases marked off the calendar for over one year if there is no prejudice to the opposing party, yet have that party automatically prejudiced because the courts find a one-year span detrimental to human recollection. Accordingly, this court rejects respondents' assertion that because Ms. Parnassus's testimony demonstrated that she was already "far from clear on many points in the past," the 14-month delay has inevitably worsened her ability to recall events. Petitioner is correct in arguing that absent a claim by Ms. Parnassus that she actually suffered memory loss during the off-calendar period or has a medical condition that affects her memory, an inference about Ms. Parnassus based on ideas about the elderly and the passage of time cannot suffice.
Turning to the final prong of the test, the court finds that petitioner has also shown significant litigation activity since the case was marked off the calendar adequate to demonstrate a lack of intent to abandon the proceeding. In 43-45 East 60th LLC v Kim, this court rejected on abandonment grounds a motion to restore a case marked off the calendar only after nothing occurred for more than 12 months. ( See 5 Misc 3d 1026[A], 2004 NY Slip Op 51575(U), *3, 2004 WL 2853029, at *2, 2004 NY Misc LEXIS 2572 [Hous Part, Civ Ct, NY County 2004].) In the present case, disclosure was actively sought and in progress for at least nine of the fourteen months the case was off the calendar. From February 14, 2007 to November 16, 2007, an EBT, document exchange, or significant correspondence occurred no more than two months apart, and most times within two weeks of each other. The five-month delay after November 16, 2007, during which no litigation occurred was an unfortunate impasse on petitioner's part, but not one significant enough to show an intent to abandon.
Because petitioner has made an adequate showing on all four requirements of Rule 208.14 (c) test for proceedings marked off the calendar for over a year, respondents' cross-motion to dismiss is denied.
Petitioner's Motion to Strike Respondents' Answer
Petitioner moves for sanctions under CPLR 3126 (3) and requests that respondents' answer be stricken for failure to comply with disclosure demands. The First Department made clear in another landlord-tenant case that for the court to grant a remedy as drastic as striking an answer, the answering party's failure to comply must be willful, deliberate, and contumacious. ( See Dexter v Horowitz Management, 267 AD2d 21, 21 [1st Dept 1999 mem].) The courts of this jurisdiction strike answers only in cases of severe non-compliance. Respondents' behavior does not rise to the contumacious level required to justify striking respondents' answer. In Figdor v City of New York, the First Department was dismayed that the defendant had resisted a "myriad" of court discovery orders over the course of two years. ( See 33 AD3d 560, 561 [1st Dept 2006 mem].) Similarly, in Miller v City of New York, the Supreme Court struck the defendant's answer where he had failed to comply with a preliminary conference order, three interim orders, and a final conditional order. ( See 15 Misc 3d 1127[A], 2007 NY Slip Op 50882[U], 2007 WL 1238601, 2007 NY Misc LEXIS 2966 [Sup Ct, Bronx County 2007].) After reviewing a series of Appellate Division decisions, the court in Miller observed that it was usually a "pattern of non-compliance" that resulted in striking an answer. ( Id., 2007 NY Slip Op 50882[U], *3)
By contrast, respondents here refused to provide some documents contained in a single stipulation dated February 14, 2007. Even if the court assumes that the initial document delivery on December 28, 2006, was also deliberately uncooperative, this would be only two instances of resistance. Respondents have not, for example, destroyed documents they knew would be discoverable. They have not exhibited anything approaching the level of non-compliance that the First Department has typically required before an answer can be stricken.
Petitioner's Motion to Compel Disclosure
Although respondents' actions do not warrant striking their answer under CPLR 3126, petitioner's alternative motion seeking an order from this court directing respondents to comply with petitioner's post-EBT document request of November 12, 2007, is granted under CPLR 3124. Under CPLR 3124, a party may move to compel disclosure properly requested under CPLR Article 31. Petitioner's CPLR 3124 motion is appropriate because respondents originally agreed in the stipulation dated February 14, 2007 (so-ordered by Judge Wendt), to provide the documents sought by petitioner on November 12, 2007. This is a normal way to obtain disclosure under CPLR 3102 (b).
Respondents' only defense to this alternative motion is that because the documents withheld pertain to Ms. Kazantsis, who is not the record tenant in this nonprimary-residence proceeding, they do not relate to this case. This objection was not raised on February 14, 2007, when respondents agreed to a stipulation that provided for disclosure of these items. The original November 30, 2006, document demand sought 34 documents from Ms. Parnassus, Ms. Kazantsis, and Ms. Benton. Under the February 14, 2007, stipulation, only the documents of Ms. Parnassus and Ms. Kazantsis would be produced, and the parties explicitly agreed to leave out item No. 11 (divorce and separation papers). This narrowing suggests that respondents raised their objections, negotiated over the terms of the stipulation, and ultimately agreed to provide 33 of the 34 items contained in the original notice as they pertained to Ms. Parnassus and Ms. Kazantsis. The documents respondents now withhold are within the 33-item scope of the February 14, 2007, stipulation and are not item #11 documents. Absent a motion to vacate the stipulation of February 14, 2007, respondents cannot now refuse to produce them.
This court orders respondents to make reasonable efforts to produce all four items outstanding as listed in petitioner's letter of November 12, 2007. Petitioner's motion to strike respondents' answer is denied, as is respondents' cross-motion to dismiss.
This opinion is the court's decision and order.