Opinion
2022-02089 Index 160523/19
03-29-2022
Athas Ioannou, Plaintiff-Respondent, v. 1 BK Street Corp., Defendant-Appellant. Appeal No. 15612 No. 2021-02075
Golino Law Group, PLLC, New York (Santo Golino of counsel), for appellant. Adam Leitman Bailey, P.C., New York (Jeffrey R. Metz of counsel), for respondent.
Golino Law Group, PLLC, New York (Santo Golino of counsel), for appellant.
Adam Leitman Bailey, P.C., New York (Jeffrey R. Metz of counsel), for respondent.
Before: Kapnick, J.P., Webber, Friedman, Kennedy, Mendez, JJ.
Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered on or about June 3, 2021, which denied defendant's motion for a protective order to suppress, nunc pro tunc, production of the building-wide rent roll registrations from the New York State Division of Housing and Community Renewal in response to a judicial subpoena duces tecum, unanimously affirmed, without costs.
Defendants failed to establish that the subpoena should have been quashed for being "utterly irrelevant to any proper inquiry" (Velez v Hunts Point Multi-Serv. Ctr., Inc., 29 A.D.3d 104, 112 [1st Dept 2006]). On the contrary, the rent roll registration records sought in the subpoena are relevant to determine whether defendant engaged in a fraudulent scheme to deregulate plaintiff's apartment and other apartments in the building (see 435 Cent. Park W. Tenant Assn. v Park Front Apartments, LLC, 183 A.D.3d 509, 510 [1st Dept 2020]; see also Gersten v 56 7th Ave. LLC, 88 A.D.3d 189, 200 [1st Dept 2011], appeal withdrawn, 18 N.Y.3d 954 [2012]), and at this stage of the litigation, the question is not whether fraud has been demonstrated, but rather whether fraud could be shown. The records are also relevant to show whether defendant re-registered the building's units while the building was receiving J-51 tax benefits (see Casey v Whitehouse Estates, Inc., 197 A.D.3d 401, 404 [1st Dept 2021]). We also reject defendant's argument that the Rent Stabilization Code (9 NYCRR) § 2528.5, which bars release of information filed with the DHCR under a FOIL request, also bars release of information in accordance with a so-ordered subpoena duces tecum. Indeed, defendant cites no authority supporting this proposition.
We have considered defendant's remaining contentions and find them unavailing.