For Petitioner Lazarus Karp, LLP Seven Penn Plaza 370 Seventh Avenue, Suite 720 New York, NY 10001 For RespondentMobilization for Justice, Inc. 424 East 147th Street, 3rd Floor Bronx, NY 10455
For Petitioner Lazarus Karp, LLP Seven Penn Plaza 370 Seventh Avenue, Suite 720 New York, NY 10001 For RespondentMobilization for Justice, Inc. 424 East 147th Street, 3rd Floor Bronx, NY 10455 Shorab Ibrahim, J.
Recitation, as required by C.P.L.R. § 2219(a), of the papers considered in review of this motion.
Order to Show Cause and Affirmation, Affidavit & Memorandum Annexed [With Exhibits A-H]1 Affirmation in Opposition 2 Reply Affirmation3 After oral argument held on November 21, 2019, and upon the foregoing cited papers, the decision and order on this motion is as follows:
FACTUAL AND PROCEDURAL HISTORY
This is a holdover proceeding commenced by 3630 HOLLAND LLC ("Petitioner") against JESSICA DAVIS, JOHN DOE and JANE DOE ("Respondents"). Petitioner seeks possession of 3630 Holland Avenue Apt. 2A, Bronx, NY 10467 ("the subject premises"), on the grounds that respondent was a month to month tenant of the subject premises, which are not subject to the Rent Stabilization Law of 1969, as amended.
Jessica Davis is the only appearing respondent and any reference to "respondent" herein shall refer to Jessica Davis.
See petitioner's Notice of Termination and Petition at Par. 6.
This proceeding first appeared on the court's calendar on February 21, 2019 and the case was adjourned for inquest. On March 31, 2019, after inquest, petitioner was awarded a final judgment of possession against Davis and the proceeding was discontinued as against John Doe and Jane Due. Respondent then interposed a pro-se Order to Show Cause ("OSC") and on the April 15, 2019 return date, the proceeding was adjourned for Mobilization for Justice ("MFJ") to conduct an intake for possible representation of respondent. On May 7, 2019, the proceeding was adjourned for MFJ to submit supplemental papers in support of respondent's pro-se OSC. On June 7, 2019, the proceeding was again adjourned for supplemental papers in support of the pro-se OSC and for petitioner's opposition. On August 1, 2019, the proceeding was adjourned for oral argument, with petitioner to submit opposition and respondent to submit a reply, if any.
Respondent sought vacatur of the default judgment, as well as leave to serve a late answer. Respondent alleged a reasonable excuse in that she did not receive the predicate notice or the notice of petition and petition, because she had no access to her mailbox until April 2019, after the judgment was entered against her, when she had a postal worker open her mailbox for her and found the postcard from the court. Respondent alleged a meritorious defense in that the subject premises are de facto subject to the Rent Stabilization Law and Code as there were six (6) or seven (7) units in her building being used for residential purposes, rather than the five (5) residential units alleged by petitioner.
See respondent's proposed Answer at Par. 2-4, respondent's Affid., sworn to June 26, 2019 and Alberto Chan Affid., sworn to on September 6, 2019. See also petitioner's verified petition at Par. 6, Affirm. in Opp., dated August 23, 2019, at Par. 13-15, Yisroel Bornstein Affid., sworn to on August 27, 2019.
On September 9, 2019, after oral argument, this court granted respondent's application to vacate the default and file an answer finding, among other things, that "Respondent has at least established there might be at least 6 units" in the building, given the sworn statements in respondent's Affidavit, sworn to on June 26, 2019 and Alberto Chan's Affidavit, sworn to on September 6, 2019.
See the September 9, 2019 Decision and Order at Pg. 2.
On October 2, 2019, this matter was adjourned for trial and the adjournment was marked final against respondent.
Sometime in the beginning of November 2019, respondent filed an OSC in Trial Part G seeking leave to conduct discovery. The OSC was denied as the case had been transferred to a trial part, was on for trial and any application, pursuant to Part X rule, should have been made in the resolution part.
Pursuant to CPLR §5704(b), respondent moved in the Appellate Term, First Department, for a stay of the trial pending disposition of her OSC. On November 4, 2019, the Appellate Term granted the application to the extent of making respondent's motion returnable on November 14, 2019 in Trial Part G. On November 14, 2019, Hon. Christel Fleur Garland issued a Decision and Order staying trial of this matter pending the determination of respondent's OSC seeking discovery and transferred the proceeding back to this resolution part. On November 15, 2019, this Court heard oral argument on respondent's application for discovery and decision was reserved.
Respondent moves for leave to conduct discovery pursuant to CPLR §§408, 3101(a)(4), 3106(b) and 3107 seeking to depose Glen Thomas, petitioner's agent and the superintendent for respondent's building, seeking Mr. Thomas' address and seeking an adjournment of the trial to allow time for a deposition. Respondent alleges she requires discovery to support her first affirmative defense, incorrectly labeled as an "objection in point of law," that the premises are rent stabilized due to her claim that there are six (6) or seven (7) residential units in the building rather than five (5), as alleged by Petitioner.
See respondent's Answer at Pg. 1.
In support of her motion for discovery and her affirmative defense that the premises are rent stabilized as the building contains six (6) or seven (7) residential units rather than the five (5) units alleged by petitioner, respondent annexes her affidavit alleging that: (i) there are seven mailboxes and six doorbells in the building; (ii) there are six (6) or seven (7) residential units or more because there are two units on each of the three floors of the building, as well as a basement apartment; (iii) respondent has observed an individual sleeping on a couch in the empty storefront on the first floor of the building; (iv) the storefront has a full bathroom, including a shower; (v) respondent observed a man and woman stay overnight in the basement, and that these individuals had a key to the basement; (vi) after this court vacated respondent's default, in part because of respondent's claim that the premises were rent stabilized and contained more than five (5) residential units, respondent observed Mr. Thomas in September allegedly attempting to remove a family from the basement unit, stating that they could not live there any longer; (vii) respondent observed the family carrying out furniture and appliances from the basement unit; and (viii) respondent went into the basement unit and found food, clothing and suitcases.
Respondent also annexes as Exhibit F to her OSC the prior affidavit of Alberto Chan, a paralegal for MFJ. Mr. Chan's affidavit alleges that: (a) in July 2019 he went to the building and observed that the commercial space contained a full bathroom, including a shower, a couch and personal belongings, as well as a hot plate with two burners; (b) the building had six mailboxes in the lobby and three floors; (c) there was a separate entrance for the basement and Mr. Chan observed an individual leaving the basement by this separate entrance; and (d) the basement has windows.
Respondent states that she has shown ample need to depose Mr. Thomas, in order to obtain information about the September 2019 incident, as well as to obtain information about whether the basement and commercial units were being used for residential purposes and whether petitioner was attempting to "cover up" the additional housing accommodations in light of petitioner's claim that the building contains only five (5) residential units. Petitioner opposes respondent's application and states that she cannot show ample need to depose Mr. Thomas as she can obtain the information sought by other means and has at least two other witnesses who can testify in support of her claim that the building is rent stabilized and contains more than five (5) residential units. Petitioner also states that Mr. Thomas does not have information or knowledge exclusively in his possession, and that merely because Mr. Thomas "might" have information and evidence is insufficient and constitutes a fishing expedition. Finally, petitioner argues that it will be prejudiced if respondent's application is granted as petitioner plans to use the subject premises as a residence for family members while they "further their education."
In reply, respondent states that Mr. Thomas does have knowledge or information exclusively in his possession, as demonstrated by the incident in September 2019 where he allegedly tried to remove a family living in the basement and that his deposition would provide the necessary "connections" between several observations made by respondent. Respondent also states that petitioner has not demonstrated prejudice as there is no affidavit from someone with personal knowledge annexed to petitioner's opposition papers and counsel's claims that petitioner needs the premises for personal use are unsupported.
The availability of discovery in summary holdover proceedings is well established, and courts have consistently held that discovery is not "inherently hostile" to the nature of a summary proceeding. (see New York Univ. v Farkas, 121 Misc 2d 643, 645, 468 NYS 2d 808 [Civ Ct, New York County 1983] quoting 42 West 15th Street Corp. v Friedman, 208 Misc. 123, 125 [App Term, 1st Dept 1955]).
Leave to conduct discovery in a summary proceeding may be granted by leave of court pursuant to CPLR §408 where "ample need" is shown by the party requesting disclosure. (see New York Univ. v Farkas, 121 Misc 2d at 646; Mautner-Glick Corp. v. Higgins, 64 Misc 3d 16, 18 [App Term, 1st Dept 2019]). Courts will consider the following factors in determining whether the "ample need" standard is met:
"In determining whether ample need has been established, courts consider a number of factors, not all of which need to be present in every case, including whether the party seeking discovery has asserted facts to establish a claim or defense; whether there is a need to determine information directly related to the claim or defense; whether the requested disclosure is carefully tailored and likely to clarify the disputed facts; whether prejudice will result from granting leave to conduct discovery; whether any prejudice caused by granting a discovery request can be diminished by an order fashioned by the court for that purpose; and whether the court, in its supervisory role, can structure discovery so that pro se tenants in particular will be protected."
Respondent incorrectly seeks discovery pursuant to CPLR §§ 3101(a)(4) and 3106(b), which apply to discovery and deposition of third-party or non-party witnesses. However, as it is undisputed that Mr. Thomas is the superintendent of the building and employed by petitioner, he is an agent of petitioner and cannot be considered a third-party or non-party. (see CPLR §3126). As such, the discussion below will deal with respondent's discovery request pursuant to the applicable CPLR §§408 and 3107.
Here, it is clear that respondent has shown ample need for discovery. Not only has this court already held that she has "at least established there might be at least 6 units" in her building, but respondent's sworn statements, as well as the Chan affidavit, set forth sufficient facts to make a prima facie showing the premises may be subject to rent stabilization, (see 270 Glenmore Ave., LLC v Blondet, 55 Misc 3d 133[A] at *2, 2017 NY Slip Op 50437[U] [App Term, 2nd Dept 2017]), thereby satisfying the first factor Farkas factor.
The deposition of Mr. Thomas is also necessary to determine information directly related to respondent's defense of de-facto rent stabilization because, as the superintendent of the building and an agent of petitioner, Mr. Thomas would presumably have knowledge of how the spaces are being used.
Mr. Thomas also has specific and exclusive knowledge of the events in late September 2019, as alleged by Respondent. Mr. Thomas has exclusive knowledge and information in his control regarding this alleged incident. The incident is particularly important given its timing. Respondent has demonstrated ample need to depose Mr. Thomas about this incident, the purpose behind it and whether, as she alleges, it involved an attempt by petitioner to "cover up" the fact that more than five units in the building are or were being used for residential purposes. The information sought goes to the heart of this proceeding and respondent's defenses. Courts have consistently granted respondents' discovery regarding the regulatory status of a housing accommodation, including the facts leading to the deregulation of same. (see Mautner-Glick Corp. v Higgins, supra; Ollie Assoc. LLC v Santos, 64 Misc 3d 1208[A] at *10, 2019 NY Slip Op 51085[U] [Civ Ct, Bronx County 2019] ("Respondent demonstrates ample need sufficient for discovery in a summary proceeding Respondent's challenge to the regulatory status of the apartment can be made at any time)). IA2 Serv. LLC v Quinapanta, (51 Misc 3d 1222(A), 2016 NY Slip Op 50779[U] [Civ Ct, Kings County 2016) guides the court's reasoning herein. In Quinapanta, the petitioner alleged there were 5 residential units and one commercial unit in the building and therefore the respondents were not rent stabilized tenants. The respondents alleged that a sixth residential unit was created, as the commercial unit was being used for residential purposes, and therefore they were covered by rent stabilization.
The court in Quinapanta granted respondents' motion to depose a third-party witness, the tenant of the commercial unit, reasoning that "[w]here the information sought is vital and within the knowledge of the other party or within the knowledge of a non-party witness, ample need has been found." (IA2 Serv. LLC v Quinapanta, 51 Misc 3d 1222(A) at *4); see NYCHA v Mordan, 62 Misc 3d 1216[A], 2019 NY Slip Op 50145[U] [Civ Ct, Bronx County 2019] (examination of non-party witness appropriate where witness has information material to respondent's defense)).
Given the sworn statements in respondent's and Mr. Chan's affidavits, it is evident that, like the non-party tenant in Quinapanta, Mr. Thomas "has the information relating to the use of the space. He is the person in possession of the essential facts bearing on the number of residential units in the premises during the period of time in question. Deposing him is relevant, nonprejudical and unintrusive The answer to this issue may clarify and possibly resolve this entire proceeding." (IA2 Serv. LLC v Quinapanta, 51 Misc 3d 1222(A) at *4).
Moreover here, unlike in Quinapanta, respondent's burden in showing entitlement to discovery is lower, as she is not seeking deposition of a non-party or third party but of petitioner's agent.
In any case, where courts "have found ample need allowing a landlord to take deposition of tenant who claimed he was residing in commercial space and was therefore protected by rent stabilization," (IA2 Serv. LLC v Quinapanta, 51 Misc 3d 1222(A) at *4, citing 390 West End Assocs v Fine, 5/29/96 NYLJ, page 28, col. 2 [Civ Ct, New York County]), considerations of equity and fairness require that respondent, a tenant claiming rent stabilization protection due to the nature of the occupancy of other individuals, be given the same latitude and be allowed to depose petitioner's agent.
The information requested by respondent is carefully tailored. Respondent seeks to take an examination before trial of Mr. Thomas regarding his actions during the September 2019 incident and regarding the nature of the occupancy of individuals in the building who are not available to be deposed. Mr. Thomas' testimony would address the facts of these individuals' occupancy which may assist in resolving the instant matter.
Petitioner's argument that respondent can use her own observations, as well as those of Mr. Chan to prove her defense at trial, so that she cannot demonstrate ample need to depose Mr. Thomas, is unavailing. In PRC Westchester Ave., LLC v Feliciano, (2019 NY Slip Op 29332 [Civ Ct, Bronx County 2019]), the court held that while the respondent could use other means to prove his succession claim at trial, the respondent was entitled to "bolster his claim" through the document production and file review sought from petitioner. Respondent is similarly entitled to bolster her claim that the building and the subject premises are rent stabilized through discovery, specifically the deposition of Mr. Thomas.
As the discovery sought here, the deposition of Mr. Thomas, relates directly to respondent's defense, such discovery request does not constitute a "fishing expedition," as alleged by petitioner.
Finally, while respondent has shown ample need to depose Mr. Thomas, petitioner fails to show any prejudice. Petitioner's claim that it would suffer prejudice is limited to one sentence in its attorney's affirmation that an agent of petitioner "has plans to use the subject premises for his family's residence while they further their education."
See Petitioner's Opp. at Par. 14. --------
However, not only is this statement conclusory but is made by petitioner's attorney with no personal knowledge of the facts. An "affirmation by the plaintiffs' attorney, who clearly has no such knowledge," is insufficient and cannot be given any weight. (see Arriaga v Michael Laub Co., 233 AD2d 244, 649 NYS2d 707 [1st Dept 1996]; Iandoli v Lange, 35 AD2d 793, 794, 315 NYS2d 752 [1st Dept 1970] (conclusory affidavits lack probative value)). Neither party discusses the sixth factor of the Farkas test. However, as not all six factors need be present in every case (see Mautner-Glick Corp. v. Higgins, 64 Misc.3 d at 18-19), and as neither party is appearing pro-se, the court need not address all factors. Finally, as Mr. Thomas is not a non-party or third-party witness, but an agent of petitioner, respondent has not demonstrated ample need for Mr. Thomas' personal address. It is sufficient for respondent to serve petitioner's counsel with a Notice of Deposition.
Based on the foregoing, it is So Ordered, that respondent's application for discovery is granted to the extent of granting leave to depose Mr. Thomas, petitioner's agent; petitioner is directed to comply with this Order and make Mr. Thomas available for deposition within 30 days of service of this Order upon Petitioner with notice of entry. This matter is adjourned to January 7, 2020, 9:30 A.M, Part F, Room 320, for compliance. SO ORDERED, Dated: November 25, 2019 Bronx, New York HON. SHORAB IBRAHIM Judge, Housing Part