Recitation, as required by CPLR §2219(a), of the papers considered in the review of respondents’s motion for an order pursuant to CPLR §408 granting her leave to conduct discovery and petitioner’s cross-motion for past due and pendente lite use and occupancy.Papers NumberedNotice of Motion and Affidavits Annexed 1Order to Show Cause and Affidavits AnnexedAnswering Affidavits (Cross-Motion) 2Replying Affidavits 3, 4ExhibitsOtherDECISION/ORDER Upon the foregoing papers, the Decision / Order on this motion is as follows: BackgroundPetitioner commenced the instant lease expiration holdover to recover possession of apartment 2 located at 446 East 78th Street, New York. Respondent interposed an answer alleging that the apartment is subject to rent stabilization and counterclaiming for rent overcharge. In response to the answer, petitioner averred that the apartment is permanently exempt from regulation due to high rent vacancy. Respondent now moves for leave to conduct discovery and petitioner cross-moves for past due and ongoing use and occupancy.DiscussionRespondent argues that it needs discovery pertaining to her rent stabilization defense, rent overcharge counterclaim and to determine the proper legal rent of the apartment. In support of her position, respondent notes that the apartment registration history indicates that the legal rent went from $433.50 in 1999 to $1,463.10 in 2000 based on purported individual apartment improvements (“IAI”) and a vacancy lease. Respondent argues that such an increase would have required petitioner, or its predecessor in interest, to have made approximately $38,062.80 in qualified IAI. Since 2002 the apartment has been registered as exempt due to high rent vacancy. Respondent asserts that $38,000.00 worth of improvements were not made to the apartment based on its condition when her tenancy began in 2017. She therefore seeks documents from 1999 though the present relating to any construction, renovation, improvements and alterations to the apartment as well as leases and renewals for all the tenants during this period.Petitioner, in opposition to the motion, argues that respondent is looking to engage in a fishing expedition for information she can use to formulate her affirmative defense and counterclaim. In addition, respondent is seeking information going back well beyond the statutory four year look back period. Finally, if the inquiry were to began at the last registered rent in 2001, the apartment would have exceeded the $2,000.00 deregulation threshold in 2002 based on a series of vacancy increases that do not appear on the registration statement.Discovery is not inherently hostile to the nature of summary proceedings. 42 West 15th St. Corp. v. Friedman, 208 Misc 123 [App Term 1st Dept 1955] and will be granted upon a showing of ample need. New York University v. Farkas, 121 Misc2d 643 [Civ Ct NY 1983]. In determining whether ample need has been established, the Court should consider: (1) whether the respondent has asserted facts to establish her defense; (2) whether there is a need to determine information directly related to the defense; (3) whether the requested disclosure is carefully tailored and is likely to clarify the disputed facts; (4) whether prejudice will result from the granting of an application for disclosure; and (5) whether the prejudice can be diminished or alleviated by an order fashioned by the court. New York University v. Farkas, supra.In applying this criteria to the instant case, this Court holds that respondent has established ample need for the disclosure she seeks. Respondent has set forth facts that could establish her improper deregulation defense and rent overcharge counterclaim. As a result, there is a need to determine whether there is any validity to these claims. The leases and proof of improvements to the apartment are within petitioner’s control and would shed light on this dispute. To the extent that some of the requested documents are not exclusively within petitioner’s control, the Court can tailor the request.ConclusionBased on the foregoing, the motion is granted to the following extent. Petitioner shall comply with respondent’s Proposed Notice to Produce except that, with respect to demand number 5, petitioner need not produce leases offered to respondent. Petitioner is also not required to comply with demands number 9 and 10. The documents produced shall cover the period from 1999 to present since the entire registration history may be searched to establish the regulatory status of an apartment. 72A Associates v. Lucas, 101 AD3d 401 [1st Dept 2012]. All documents shall be produced by June 28, 2019.The cross-motion is denied. Given respondent’s overcharge claim, the amount of legal rent can be determined only at trial. To award petitioner use and occupancy or direct that respondent deposit it with the court would be to predetermine this case. Wai Chan v. Gao Xiao Ying, 10 Misc3d 1065(A) [Civ Ct NY 2005].The matter is adjourned to July 9, 2019 at 11:30 am for settlement or trial.This constitutes the decision and order of the Court.Date: May 10, 2019New York, New York
