Recitation, as required by C.P.L.R. §2219(a), of the papers considered in review of this motion.Papers NumberedNotice of Motion and Affidavits Annexed (Resp) 1Notice of Motion and Affidavits Annexed (Pet) 2Resp Answering Affidavits 3Notice of Cross-Motion and Affidavits Annexed 4Pet Replying Affidavits 5Resp Answering/Replying Affidavits 6DECISION/ORDER Upon the foregoing cited papers, the decision and order on these motions are as follows:This is a nonpayment summary eviction proceeding. After answering the petition Respondent has moved for discovery related to a rent overcharge claim. Petitioner has moved to preclude Respondent’s affirmative defenses and counterclaims, and to compel payment of use and occupancy. The motions are consolidated for disposition herein.Respondent seeks evidence regarding the increase in the rent from the prior tenant of record, registered at $550 in 2014, and Respondent’s rental amount, registered at $1,225 with a preferential rent of $1,050. Respondent, who signed a rent stabilized lease, argues that a 20 percent vacancy increase would have increased the rent to only $660. In anticipation of Petitioner claiming an Individual Apartment Improvement increase, she seeks documents on improvements and/or renovations done to the apartment.By only highlighting an increase in the rent and noting Petitioner’s failure to explain the increase in rider to the parties’ lease, Respondent has failed to demonstrate ample need for discovery. Missing from the motion is an affidavit from Respondent herself in which she could have alleged that the condition of the apartment is such that IAIs were unlikely or unjustified. Instead, Respondent argues, via affirmation of her attorney, that Petitioner would have had to spend upwards of $19,000 on IAIs to increase the rent to the amount claimed. Although the increase is clearly higher than a vacancy allowance and Petitioner has offered no explanation for its calculation at this juncture in the proceeding, there is no basis to grant discovery based merely on this fact (cf. Matter of Boyd v. New York State Div. of Hous. & Community Renewal, 110 AD3d 594 [1st Dept 2013], rev’d 23 NY3d 999 [2014]). In contrast to the cases cited by Respondent, this is not a case where Petitioner is claiming that the apartment has been deregulated and Respondent is pointing to various irregularities that might demonstrate a fraudulent scheme to deregulate the apartment but which an affidavit from the tenant herself might not be necessary. Rather, there is nothing in the record that suggests that Respondent herself has any reason to doubt the legitimacy of the rent she agreed to. Accordingly, Respondent’s motion is denied. Of course, Respondent is free to question Petitioner’s witnesses regarding the rent increase at trial. Respondent may also be able to obtain an amplification of the pleadings via a demand for a bill of particulars.Petitioner’s motion to preclude, which is effectively a motion to strike Respondent’s first affirmative defense alleging improper service, is granted. The affidavit of service constitutes prima facie proof of service by describing personal delivery of the notice of petition and petition upon Respondent at the subject premises (104 Realty LLC v. Johnson, 35 Misc 3d 148 [A], 2012 NY Slip Op 51077[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). Respondent’s answer, which is not verified by Respondent, offers nothing more than a bare, conclusory denial of personal delivery, and the opposition papers, which do not include a sworn affidavit from Respondent, fail to rebut the presumption of proper service (Endlich v. Sweet, 34 Misc 3d 155 [A], 2012 NY Slip Op 50396[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). The only allegations of improper service are made by Respondent’s attorney in his affirmation, and Respondent’s sister, Claudia Mencia, who attests she answered the door and someone “handed [her] some papers.” Both fall short of raising an issue concerning service. Respondent neither denies receiving the papers nor refutes the physical description contained in the affidavit of service. Respondent’s argument that service was defective because copies of the notice of petition and petition were not mailed to the premises in unavailing as RPAPL 735 does not require mailings where service of process is effectuated by personal delivery. The first affirmative defense is dismissed.Petitioner’s cross-motion to compel use and occupancy is denied. On the record before the court the proceeding has not been adjourned twice at the request of Respondent, nor have thirty days elapsed within the meaning of RPAPL 745(2)(a)(ii), as the first two adjournments were consented to by the parties (Myrtle Ventures Five, LLC v. Eye Care Opt. of NY, Inc., 48 Misc 3d 4, 2015 NY Slip Op 25151 [App Term, 2d, 11th & 13th Jud Dists 2015]), and Petitioner’s motions, considered adjournments at Petitioner’s request, toll the RPAPL 745(2) period (Quality and Ruskin Associates v. London, 8 Misc 3d 102, 2005 NY Slip Op 25154 [App Term, 2d & 11th Jud Dists 2005]).The proceeding is restored to the calendar for trial to be held on June 13, 2018.Dated: May 9, 2018
