Recitation, as required by CPLR 2219 (a), of the papers considered in the review of this: Respondent’s motion for leave amend his pro se answer and leave to conduct discovery.Papers NumberedNotice of Motion, Motion and Exhibits Annexed 1Affirmation in Opposition 2DECISION and ORDER This is a nonpayment proceeding commenced to recover unpaid rent from Respondent. At the time of filing in September 2017, Petitioner claimed that Respondent owed $7,920.61 in unpaid rent and legal fees, dating back to December 2016. Respondent answered the petition pro se, entering a general denial and a counterclaim that he had requested a transfer. On the first court appearance on September 25, 2017, the matter was adjourned to November 6, 2017 for Respondent to seek counsel. On that date, Petitioner and Respondent’s retained counsel entered into a stipulation adjourning the matter to December 14, 2017 for all purposes. On December 11, 2017, Respondent filed the instant motion seeking leave to amend his pro se answer and leave to conduct discovery relevant to his defenses and counterclaims of illegal rent and rent overcharge. Following filing of the motion, the matter was adjourned by three stipulations for motion practice and settlement. The most recent appearance occurred on April 19, 2018, and at that time Respondent’s counsel indicated that there was no resolution and Respondent wished to move forward with the motion. Accordingly, the Court set a briefing schedule and afforded Petitioner until May 10, 2018 to submit opposition and Respondent until May 24, 2018 to reply.1 The first part of Respondent’s motion seeks leave to file an amended answer. Respondent claims that as a pro se litigant he was not aware that he could assert various defenses and counterclaims until after he was able to speak to an attorney. Respondent alleges that there are conditions in the apartment which Petitioner has failed to correct and that Petitioner has overcharged him rent. Counsel for Respondent indicates that should that the Court grant this portion of the motion, Petitioner would not be prejudiced as the motion was made shortly after Respondent obtained counsel.Respondent also seeks leave to conduct discovery. In support of his motion, Respondent asserts that discovery is necessary to determine whether the rent Petitioner is attempting to collect is a legal amount. Respondent indicates that a review of the rent history for the apartment shows a “suspicious” rent increase took place in 2008 where the legal regulated rent went from $649.36 to $2,331.00 without explanation. Respondent contends that in order to try to understand why such a significant increase in the legal rent occurred, it is necessary to review documents that are exclusively in the control of Petitioner.Additionally, Respondent seeks to examine the apartment’s rent history from 2007, past the four-year base date set forth by statute, and alleges that fluctuations in rent as set forth in the Division of Housing and Community Renewal “(DHCR”) rent history show indicia of fraud, which would permit disclosure beyond the four-year statute of limitations.Petitioner opposes the motion, asserting that Respondent occupies the subject premises as a participant in a program for homeless individuals (the “LICHT” program) and as such has a permanent preferential rent that is much lower than the legal regulated rent. Petitioner further states that in lieu of previously submitting opposition and in an effort to settle, Petitioner provided certain documentation to Respondent’s counsel and that upon receipt of that documentation, Respondent’s counsel indicated that Respondent would seek to have his arrears paid by the Department of Social Services. Lastly, Petitioner indicates that as of May 31, 2018, Respondent’s arrears total $15,431.22.Upon review of the moving papers and papers submitted in opposition, as well as the Notice to Produce, Respondent’s motion is granted in its entirety. Respondent is permitted to file with the Court and serve a copy on Petitioner Respondent’s Amended Answer. The Court finds that there is no prejudice to Petitioner in that the motion to amend was timely filed once Respondent retained Counsel and it is due to the many adjournments consented to by counsel for both sides that the motion is now being decided nearly six months after it was filed. Further, Petitioner has had ample notice of the defenses and counterclaims that Respondent plans to raise at trial.With regard to Respondent’s request for leave to conduct discovery, the Court finds that ample need has been established. See New York Univ. v. Farkas, 121 Misc.2d 643, 468 N.Y.S.2d 808 (Civ. Ct. New York County 1983). Disclosure beyond the four-year period is permissible where there exists a colorable claim of fraud. See Matter of Grimm v. State of N.Y. Div. of Hous. & Community Renewal Off. of Rent Admin., 15 N.Y.3d 358, 912 N.Y.S.2d 491 (2010). Absent a colorable claim of fraud, events beyond the four-year statute of limitations may be considered to the extent that discovery is sought to determine whether an apartment is regulated and not for the purpose of calculating an overcharge. See East W. Renovating Co. v. New York State Div. of Hous. & Community Renewal, 16 A.D.3d 166, 791 N.Y.S.2d 88 (1st Dept. 2005); Matter of H.O. Realty Corp. v. State of N.Y. Div. of Hous. & Community Renewal, 46 A.D.3d 103, 844 N.Y.S.2d 204 (1st Dept. 2007); 150 W. 82nd St. Realty Assoc., LLC v. Linde, 36 Misc.3d 155(A), 964 N.Y.S.2d 61 (1st Dept. 2012). The Court finds that Respondent has set forth sufficient indicia of fraud in that there have been fluctuations in the rent for the subject premises and Petitioner has not provided a basis for such. Accordingly, Respondent is permitted to look back beyond the four-year time period as to his defenses and counterclaims of illegal rent and rent overcharge.It is hereby ORDERED that Petitioner is to comply with the Notice to Produce, to the extent that it has not already done so, within twenty (20) days upon proper service by Respondent.Respondent shall serve a copy of this order with notice of entry upon Petitioner.The proceeding is adjourned July 19, 2018 at 9:30 a.m. Part U for status upon completion of discovery and settlement conference if discovery is complete.This constitutes the Decision and Order of the Court.Dated: New York, NYJune 15, 2018ENTERED:
