Recitation, as required by CPLR 2219(a), of the papers considered in the review of respondent’s motion for disclosurePapers NumberedNotice of motion & Affidavits AnnexedNotice of Cross-motion and Affidavits Annexed 1Answering Affidavits 2Replying AffidavitsExhibitsOtherDECISION AND ORDER Upon the foregoing cited papers, the Decision and Order on this Motion is as follows:In this holdover proceeding, commenced after the expiration on May 31, 2018 of a Notice Terminating Tenancy, petitioner commenced this summary proceeding seeking to recover possession of apartment 2C (the “Apartment”) in the building located at 639 Eastern Parkway, in Brooklyn (the “Building”).By decision and order dated March 12, 2019 the Hon. Zhuo Wang denied respondent’s motion seeking dismissal, or, in the alternative, leave to interpose a late answer, granted petitioner’s motion to amend the petition to reflect that respondent’s tenancy is subject to the terms of a regulatory agreement with the New York City Department of Health and Mental Hygiene (the “DOHMH Agreement”) and a contract with the New York State Office of Mental Health (the “OMH Agreement”), deemed the proposed amended petition served and filed, granted respondent leave to serve and file an answer to the amended petition, and scheduled the matter for trial or settlement.Respondent interposed an answer alleging petitioner’s failure to plead properly the regulatory status of the apartment, the failure to plead compliance with the requirements of the DOHMH Agreement and OMH Agreement, that respondent is entitled to a reasonable accommodation, if petitioner is granted a judgment, in the form of a permanent stay, as well as breach of the warranty of habitability and a request for an order to correct.The proceeding was thereafter adjourned, and respondent now moves for disclosure, seeking responses to six interrogatories and the production of nine categories of documents. The interrogatories ask petitioner to identify caseworkers, psychologists, psychiatrists, social worker and mental health professionals who are employed by petitioner and have worked with respondent since 2017. Respondent further asks, in essence, for petitioner to identify all steps it took prior to commencing litigation, and to identify all witnesses to such steps employed by petitioner or serving as contractors. Respondent asks petitioner to identify and describe any alternate placement for respondent, and for a witness list.Respondent nominally seeks nine categories of documents. Specifically, respondent first asks for all documents responsive to the interrogatories. Respondent then asks for the SUS case records for respondent since she moved into the apartment. Subsequent categories of documents sought include respondent’s individual written service plan, the comprehensive needs assessment, all preliminary notices served prior to the commencement of the instant proceeding, all documents regarding corrective actions or direction provided by petitioner to respondent prior to commencement of the instant proceeding, documents related to alternative housing, and respondent’s original lease.A party seeking disclosure in a summary proceeding must obtain leave of the court (CPLR 408), and to be successful in making such a request, must demonstrate ample need (Antillean Holding Co. v. Lindley, 76 Misc 2d 1044, 1047 [Civ Ct NY County 1973]). It has been held that the court should consider the following factors to determine whether that standard has been met —(1) whether, in the first instance, the petitioner has asserted facts to establish a cause of action. Thus, a fishing expedition utilized by the landlord for the purpose of formulating a cause of action or by the tenant to establish a defense, should never be permitted;(2) whether there is a need to determine information directly related to the cause of action;(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;(5) whether the prejudice can be diminished or alleviated by an order fashioned by the court for this purpose, e.g., conditioning a grant of a motion for discovery upon the payment of use and occupancy; ordering that all discovery must be done, if at all, within a relatively short time period;(6) whether the court, in its supervisory role can structure discovery so that pro se tenants, in particular, will be protected and not adversely affected by a landlord’s discovery requests.(New York Univ. v. Farkas, 121 Misc 2d 643, 647 [Civ Ct 1983]).Respondent asserts that disclosure is necessary to the presentation of a defense, and asserts that the DOHMH Agreement and the OMH Agreement impose requirements on petitioner, consonant with the status of supportive housing. In essence, respondent asserts that the failure to provide the required services undermines termination the tenancy.Respondent states that she has both physical and mental disabilities that affect her memory, and further indicates an awareness of the name of her case manager, that she believes that the Apartment is part of a scattered sites housing program, and that she receives psychiatric care through SUS but at a facility unrelated to the Apartment. Respondent also asserts that her first notice of the proceeding was a termination notice, and that she is unsure of whether any of the steps required either by the OMH agreement or the DOHMH agreement took place. Respondent also asserts that she was told she would be moved and that “some paperwork” had been filled out.As petitioner notes, CPLR 3015(a) requires that, when a respondent pleads the failure to comply with a condition precedent, the petitioner will be required to prove its compliance at trial. The documents respondent seeks, and the interrogatories proposed, seek disclosure of information that petitioner would have to present at trial as a consequence of respondent’s denial that petitioner satisfied a condition precedent. As such, petitioner bears no added burden to gather such information. Petitioner further notes that respondent has indicated that her condition affects her memory. Thus, the documents in petitioner’s possession gain importance as a source of information about what transpired prior to the commencement of the proceeding. Because of respondent’s memory loss, her capacity to contradict petitioner’s claims would be profoundly impaired if respondent is not afforded the opportunity, prior to trial, to examine petitioner’s evidence of compliance and seek out contradictory evidence should such evidence exist.With one exception, the burden of disclosure here is merely to produce what will otherwise need to be presented as evidence at trial, respondent’s need for such information is evident, and disclosure would provide clarity. Respondent asks, as an interrogatory, for petitioner to identify all witnesses and expert witnesses that petitioner intends to call at trial. Such a request, as to witnesses other than expert witnesses, plainly does not serve to clarify disputed issues of fact. CPLR 3101(d)(1)(i) specifically contemplates the disclosure of the identity of expert witnesses upon request, and petitioner’s response to respondent’s sixth interrogatory need only disclose the identity of anticipated expert witnesses.Accordingly, this matter is marked off the court’s calendar pending the completion of disclosure, and may be restored by stipulation or motion indicating that the proceeding is ready for trial.This is the decision and order of the court.Dated: June 17, 2019Brooklyn, New York
