Recitation, as required by CPLR 2219(A), of the papers considered in the review of this Motion by respondent for leave to conduct discovery. PAPERS NUMBERED Notice of Motion and Affidavits Annexed 1 Affirmation in Opposition 2 Replying Affidavit 3 DECISION/ORDER Upon the foregoing cited papers, the Decision/Order in this Motion is as follows: PROCEDURAL HISTORY: This nuisance holdover proceeding was commenced in November 2018 to recover possession of apartment 4CC located at 2438 Prospect Avenue, Bronx, New York. Petitioner seeks possession on the ground that respondent is engaging in nuisance conduct contrary to Sections 2524.3 and 2524.3(b) of the Rent Stabilization Code. The seven day (7) Notice of Termination incorporated into the notice of petition, in part provides: You are committing and/or permitting a nuisance to exist based upon your actions and conduct which are set forth in detail below. This is a fifty apartment building. Approximately five years ago, the Owner installed a camera/security system in the building. There were 16 cameras installed in the building. There is a camera on each floor. There is a camera covering every entrance and exit in the building. The camera system is monitored centrally from the office of the building management. Many of these incidents which will be set forth below occur after business hours and primarily in the early morning. Tenants call the office after these nuisance incidents occur to complain. Management then watches the video and determines what occurred and who was involved. Edwin Vasquez, the tenant of record is approximately 60 years of age. He has repeatedly informed management of his desire to leave the building due to his family members residing there and taking advantage of him. Management put off bringing this holdover action based upon his representation that he would be leaving. Unfortunately, due to the most recent incidents. Management felt compelled to take action and bring this proceeding. Many of the residents in this building are long standing tenants who are suffering as a result of the conduct set forth below. Edwin Vasquez’s son passed away in the apartment. The son’s wife, Edwin Vasquez’s daughter-in-law is residing in the apartment with her son, Edwin Vasquez’s Grandson. Management has not been able to learn the names of the Grandson and Daughter-in-Law despite attempts being made. These are dangerous individuals who Management believes are gang affiliated. They are inviting nonresidents of the building into the building to loiter, carry on, smoke, drink, party, fight and damage the building at all hours of the day and night. The Notice to Terminate also includes 43 incidents that allegedly took place from May 10, 2017 through June 2018 involving respondent’s grandson and daughter-in-law which disturbed the quiet enjoyment of the other tenants of the building, resulting in complaints being filed against respondent. None of the alleged incidents of objectionable behavior involved the respondent, Edwin Vasquez. The proceeding first appeared on the court’s calendar on November 1, 2018, and was adjourned to December 5, 2018. On December 5, 2018, the proceeding was adjourned to January 16, 2019. On January 11, 2019, Mobilization for Justice, Inc., filed a notice of appearance on behalf of the respondent, together with a motion for leave to file an amended answer, with a Demand for a Verified Bill of Particulars. The proceeding was adjourned two additional times for possible settlement. On March 11, 2019, petitioner consented to respondent filing his amended answer, to respond to the Demand for a Verified Bill of Particulars, and adjourned the case to March 26, 2019, for an inspection. On March 26, 2019, the proceeding was adjourned to April 9, 2019, for possible settlement. On April 9, 2019, the proceeding was again adjourned to May 22, 2019, for petitioner to respond to respondent’s Demand for a Verified Bill of Particulars. On April 11, 2019, petitioner filed a response/rejection to respondent’s demand. On May 22, 2019, the proceeding was adjourned to June 18, 2019, for trial. On June 7, 2019, respondent filed the within motion for discovery.1 RESPONDENT’S MOTION: Respondent moves, pursuant to CPLR §408, for leave to conduct-pretrial discovery. Respondent is seeking the names and addresses of any and all individuals who have complained about alleged nuisance conduct cited in the Notice of Termination, regarding the respondent/and/or subject premises, from May 10, 2017 through August 4, 2018. Respondent is also seeking production of all documents, letters, books, ledgers, papers, writings or records, videotapes or audio tapes, including transcripts, or memoranda relating to or tending to relate to any and all alleged complaints made against respondent from May 10, 2017 through August 4, 2018. Respondent has also filed a Notice of Deposition, to depose Lum Pelinkovic, the managing agent of petitioner, and any employee of petitioner who has information and knowledge pertaining to the alleged nuisance conduct. Respondent argues he would be prejudiced if denied access to this information as he cannot adequately prepare for trial since he was not present for the majority of the alleged incidents, and petitioner has sole control over the videos and documentary evidence of the complaints. Respondent further argues that the discovery request is directly related to his second affirmative defense in which he denies he has engaged in the alleged objectionable conduct, and third affirmative defense, where respondent states he cured the condition constituting a nuisance, prior to the notice of termination, as his grandson and daughter-in-law moved out in the summer of 2018. Additionally, the requested discovery is narrowly tailored to permit respondent to prepare his defense, clarify disputed issues prior to trial, and promote efficiency. Petitioner will not be prejudiced by the request, respondent argues, since it presumably has these records which were used in preparing the Notice of Termination in this case and would be used for trial. Respondent further argues that a a tenant may be granted discovery, Pursuant to CPLR §3101(1) including depositions, where a less stringent standard of “ample need” is required to be shown. Courts have held that discovery is appropriate in eviction proceedings where the petitioner alleges objectionable conduct, allowing witnesses and records maintained by the petitioner to be discovered which would clarify the facts and directly impact his defense, thereby promoting judicial efficiency. CPLR §3101 (1), respondent argues, is applicable here which provides that “there shall be full disclosure of any films, photographs, video tapes or audio tapes, including transcripts, or memoranda thereof…there shall be disclosure of all portions of such material, including out-takes, rather than only those portions a party intends to use.” The Court of Appeals observed that parties seeking disclosure of any of the specified items under CPLR §3101 (1) need not make a showing of “substantial need,” and “undue hardship,” given these concerns about the reliability of video evidence because a respondent has “ample need” to get video and audio recordings which can be altered. Tran v. New Rochelle Hosp. Med. Ctr., 99 NY2d 383 (2003). Petitioner has not submitted an affidavit from anyone with personal knowledge, but an affirmation in opposition from its attorney, who argues that respondent’s motion must be denied because respondent has failed to show “ample need” enumerated in New York University v. Farkas, 121 Misc.2 643 (Civ. Ct. N.Y. County 1983). The petitioner argues that the request for discovery is a delay tactic, overly broad, burdensome, not narrowly tailored, unnecessary, and a form of harassment. Petitioner also argues that respondent has failed to make a timely request as the events occurred last year, the videos are periodically erased in the ordinary course of business, the details of the complaints are no longer in petitioner’s possession respondent already has the necessary materials to determine the pattern of nuisance and details of the complaints. Further, petitioner argues, respondent has not asserted any facts denying the allegations in the petition and that the occupants are the only ones who can contest whether the events occurred. DISCUSSION: Discovery is unavailable as a matter of right in summary proceedings, leave of the court must be obtained to conduct disclosure. CPLR §408. The primary purpose of the leave requirement is to make summary proceedings expedient and reduce costs. However, no per se rule prohibits disclosure in summary proceedings, and “summary proceedings, despite its name, is nonetheless a judicial proceeding, and…the ends of justice ought not be sacrificed for speed.” Smilow v. Ulrich, 11 Misc.3d 179 (Civ. Ct. NY County 2005). Where a party demonstrates “ample need” for discovery, it should be granted. Antillean Holding Co. v. Lindley, 76 Misc.2d 1044 (Civ. Ct. N.Y. County 1973); New York University v. Farkas, 121 Misc.2d 643 (Civ. Ct. NY Ct., 1983). Courts have held that discovery is appropriate in holdover proceedings such as where the petitioner alleges objectionable conduct since facts are often unique and sharply contested. Discovery is also not for the landlord’s exclusive benefit as a tenant may also be granted similar relief to defend against the proceeding, if the disclosure demand reaches the “ample need” threshold. Smilow v. Ulrich, 179 Misc. 3d 179, 182 (Civ. Ct. N.Y. Co. 2005). The factors considered in showing ample need are: (1) the movant has asserted facts to establish a cause of action or meritorious defense: (2) the movant has demonstrated a need to determine information directly related to the cause of action; (3) the information requested is carefully tailored and is likely to clarify the disputed facts; (4) granting disclosure would lead to prejudice; (5) the court can alleviate the prejudice; (6) the court can structure discovery to protect pro se tenants against any adverse effects of a discovery request. New York University v. Farkas, 121 Misc.2d 643, 644 (Civ. Ct. N.Y. Cty., 1983). The court can consider these factors, all of which need not be present. Antillean Holding Co. v. Lindley, 76 Misc 2d 1044 Civ. Ct. N.Y. Co. 1973). Here, respondent has shown “ample need” for the court to grant discovery. The Notice of Termination includes over 43 alleged incidents of objectionable conduct by respondent’s grandson and daughter-in-law which allegedly disturbed the quiet enjoyment of the other tenants in the building. However, the notice of termination, fails to state the names and addresses of those who complained or the names of the employees who received the complaints. In his second affirmative defense, respondent denies the allegations in the Notice of Termination, and his third affirmative defense states the objectionable conduct was cured before the notice of termination dated September 13, 2018, as his grandson and daughter-in-law moved out in the summer of 2018. Respondent is seeking to obtain information necessary to prepare his case against petitioner’s claims of objectionable conduct. 86 West Corp. v. Singh, 2007 NY Misc. LEXIS 238 NYLJ 108 (Civ. Ct. N.Y. Co. 2007). The information respondent has requested is directly related to the cause of action and his defenses to this proceeding, and are exclusively in petitioner’s possession. 656 West Realty LLC v. Blanco, 32 Misc.3d 128 (A) (App Term 1st Dept. 2011). Respondent would be prejudiced if he is not granted disclosure as the Notice of Termination does not state the names and addresses of the complainants or employees, and would not allow him to adequately prepare for trial. The names and addresses of witnesses are discoverable when sought to prepare for trial since these complaints form the basis of this proceeding. Hoffman v. Ro-San Manor, 73 AD2d 207 (1st Dept. 1980). Petitioner’s argument that the respondent is not entitled to discovery as many of the alleged conduct was committed by respondent’s daughter-in-law and grandson, is unavailing as it is respondent who is in jeopardy of being evicted. Petitioner has also failed to demonstrate that compliance with the disclosure request is overly broad, unduly burdensome, prejudicial, or dilatory. Further, the court is disturbed by petitioner’s counsel statement in his affirmation, as well as on the record during oral argument, that copies of complaints and the video tapes upon which petitioner has based this proceeding are no longer available. How did petitioner plan on proving their case at trial? Respondent’s request will provide information that will clarify the facts, allow him to prepare a proper defense to the allegations, be prepared for trial, and promote judicial efficiency. Petitioner will not be prejudiced by the granting of discovery as the requested information was used in preparing the notice of termination and should have been preserved by petitioner for trial. The names and addresses of the witnesses that have filed complaints, as well as the name and addresses of the employees who received those complaints and viewed the videotapes, as well as the deposition of the managing agent which underlie this proceeding, are narrowly-tailored discovery requests which target the disputed facts. Respondent has shown ample need for disclosure, his motion for discovery is granted and this court directs petitioner to comply with the Demand for a Production of Documents, annexed as Exhibit C to respondent’s Notice of Motion. In light of petitioner’s claim that the complaints and video tapes are no longer available, and the Notice of Termination states that management reviewed the video tapes of the alleged objectionable conduct, the court grants respondent’s motion for leave to depose petitioner’s managing agent, Lum Pelinovic. Granting respondent’s request to depose the managing agent, would also allow respondent to adequately prepare his defense to this proceeding. However, respondent’s motion to depose any employee of petitioner who has information and knowledge pertaining to the alleged nuisance conduct is denied as it is overbroad. Accordingly, respondent’s motion for discovery is granted, petitioner is to respond to respondent’s demand for a production of documents within 30 days of service of a copy of this decision/order with notice of entry. Petitioner is to produce its managing agent, Lum Pelinovic, for a deposition at a mutually convenient date and time agreed to by the parties within 30 days after service of petitioner’s responses to the document demand. The proceeding is marked off calendar for the completion of discovery and either side may move to restore the proceeding to the court’s calendar upon proper notice. This constitutes the decision and order of this court. The court to send a copy of this decision to both sides. Dated: July 26, 2019 Bronx, New York
