Opinion
L & T 81693/15
05-03-2016
IA2 Service LLC, Petitioner v. Fabian Quinapanta, Respondent.
Law Office of Jeffrey H. Roth, by Jeffrey H. Roth, Attorney for Petitioner Make The Road New York, by Ryan Napoli, Attorney for Respondents
Law Office of Jeffrey H. Roth, by Jeffrey H. Roth, Attorney for Petitioner Make The Road New York, by Ryan Napoli, Attorney for Respondents John H. Stanley, J.
Numbered Notice of Motion and Affidavits Annexed 1-3 Notice of Cross-Motion and Affidavits Annexed 10-12 Affidavits/Affirmation in Opposition 14 Reply Affidavits/Affirmation Memorandum of Law Exhibits Affidavit/Affirmation/Acknowledgment of Service 4-9, 13,15 DECISION/ORDER
Respondents move for an order in these 5 consolidated holdover proceedings for leave to depose one nonparty witness. Petitioner opposes claiming discovery is nothing other than a stall tactic and will just frustrate and delay the landlord regaining possession. Each of the holdover proceedings are based upon the allegation that Respondents are not rent regulated tenants whose leases expired after service of a thirty day notice of termination.
Index Numbers L & T 81693/15-81697/15 were consolidated in Part G on January 8, 2016.
Petitioner previously moved for discovery and respondents cross moved for summary judgment. These motions were withdrawn without prejudice by Order dated February 4, 2016. The building in question is alleged to have 5 residential units and one commercial unit. This number of residential units makes a building generally ineligible for coverage under the rent stabilization law. Rent Stabilization Law §26-504 (the law applies to Class A multiple dwellings not owned as a cooperative or condominium containing six or more units . . .). The answers interposed by the respondents allege that, for a period of at least a year, a sixth apartment was created in the building thereby making the tenants rent stabilized. Respondents' prior motion for summary judgment subsequently withdrawn attached various affidavits and attestations that someone lived in this created sixth unit. In opposition to the now withdrawn motion Mr. Sau Mau Chau, a member of the petitioner's limited liability corporation states this is untrue. Of more probative value is an affidavit from Juan Diego Sanchez Valderrama. Mr. Sanchez Valderrama attests to being the commercial tenant of the premises pursuant to a commercial lease made July 21, 2012. Mr. Sanchez Valderrama states he never used any portion of the building, including the basement, as a residence during his tenancy. His use was solely for commercial and storage purposes.
Respondents now seek limited discovery based on the affidavit to depose Mr. Sanchez Valderrama to determine whether he lived in a created sixth residential unit.
Discovery in a summary proceeding is unavailable without leave of court. CPLR §408. The party seeking disclosure has the burden of showing ample need. New York University v Farkas, 121 Misc .2d 643, 468 N.Y.S.2d 808 (NY Civ. Ct.1983). See also Quality & Ruskin Assoc. v London, 8 Misc 3d 102, 800 N.Y.S.2d 259 (App. Term 2d & 11th Jud. Dist. 2005); Hartsdale Realty Co. v. Santos, 1170 A.S.2d 260, 565 N.Y.S.2d 527(1st Dep't, 1991). Ample need is met when the requesting party can show a special or extraordinary situation. Joshua HDFC v Carter, 6/5/09 N.Y.L.J. 27, col.3 (Civ.Ct.Kings Co)(granting a motion for petitioner to produce documents for a succession claim which respondent tenant would ordinarily have in a case where the tenant requesting the documents was cared for by family for many years) or by demonstrating the novelty or complexity of the issues involved. Joseph Savarese Real Estate Corp v Stone, 6/19/85 N.Y.L.J. 6, col. 1 (App. Term 1st Dep't). The criteria set in Farkas is as follows:
Whether the movant has asserted facts to establish a cause of action;See also, Gluska v Kirshman, 7/1/80 N.Y.L.J. 12, col.1 (App. Term 2d Dep't); 42 West 15th St. Corp. v Friedman, 208 Misc. 123, 143 N.Y.S.2d 159 (App. Term 1955). Not all of the Farkas factors need to be met in order for the court to find ample need. Where 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. Plaza Operating Partners, Ltd. v IRM, Inc., 143 Misc 2d 22, 539 N.Y.S.2d 671 (1989). See also, 125 Church St. Dev. Co. v. Grassfield, 170 Misc 2d 31, 648 N.Y.S. 515 (1996).
Whether there is a need to discover information directly related to the cause of action;
Whether the requested disclosure is carefully tailored and is likely to clarify the disputed facts; and
Whether prejudice will result from the granting of an application for disclosure.
The court need only decide whether the testimony sought is relevant or deleterious Smilow v Ulrich, 11 Misc 3d 179, 182. Here, it is Mr. Sanchez Valderrama who 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 ( Smilow v Ulrich, supra p.189). The answer to this issue may clarify and possibly resolve this entire proceeding.
The 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, since tenant's use of premises was within his knowledge and not the landlord's. 390 West End Assocs v Fine, 5/29/96 N.Y.L.J. 28, col.2 (Civ Ct NY Co.). The tenant's herein have exhibited the same ample need.
Accordingly, Respondent's motion for discovery, limited to the deposition of Juan Diego Sanchez Valderrama, is granted. In order to ensure this matter is not significantly delayed this court also orders petitioner's attorney to provide any contact information for Mr. Sanchez Valderrama to respondents' attorney. This proceeding is marked off calendar and may be restored by stipulation or motion.
This constitutes the decision and order of the court Dated: May 3, 2016 Brooklyn, NY ______________________________________ Hon. John H. Stanley Judge, Housing Court