Recitation, as required by CPLR 2219 (a), of the papers considered in the review of this motion of petitioner seeking summary judgment and other relief. Papers Numbered Notice of Motion and Affirmation Annexed 1 Answering Affirmation 2 Replying Affidavit 3 Exhibits 4 DECISION/ORDER Petitioner Mensil Realty Corp commenced this chronic rent delinquency holdover against respondent, tenant of record, Craig Lopez, as well as against undertenants, John and Jane Doe. The predicate Notice of Termination alleges that respondent violated a substantial obligation of his lease and that respondent constantly pays his rent late causing the petitioner to commence nonpayment proceedings and/or make formal demands for rent. The notice references five prior nonpayment cases, one each filed in 2013, 2016, 2018 and two cases filed in 2015. Petitioner also alleges respondent was in arrears through the date of the pleadings. Petitioner now moves to substitute Rachel Allen for Jane Doe, seeks a default judgment against respondent Lopez for his failure to answer, seeks to strike undertenant Allen’s affirmative defense of succession, seeks summary judgment pursuant to CPLR Sec. 3212 and/or alternatively seeks discovery and to depose undertenant, Rachel Allen and seeks an order directing respondent Allen to tender “use and occupancy” during the pendency of this proceeding as the last lease rate, without prejudice to seeking a higher rate at the termination of the proceeding. Respondent-undertenant Rachel Allen interposes an answer raising the affirmative defense of succession, as a longtime partner of respondent Craig Lopez, with whom she alleged she enjoyed a non-traditional family relationship since August 2006. Allen opposes the portion of petitioner’s motion seeking a default judgment and summary judgment but does not oppose the portion seeking to depose her. A review of the court file indicates that respondents did not appear on the initial return date of July 16, 2018. The case was adjourned for inquest to August 13, 2018. Thereafter, respondent Lopez appeared on August 13, 2018 and Judge Gary F. Marton issued an order adjourning the proceeding for trial to September 13, 2018 and indicated that petitioner declined to offer a probationary stipulation to respondent and that respondent represented he had been ill often during the past two years. On September 13, 2018 undertenant Rachel Allen first appeared and advised the court that respondent had suffered a debilitating stroke sometime after the August court date and was hospitalized and in a vegetative state. An Adult Protective Services (APS) referral was made by the court and the proceeding was adjourned to November 5, 2018 for an APS update. Mr. Joseph Onaga, the court’s APS liaison notified the court on the November return date that APS had rejected the case as the respondent was hospitalized. A letter from Catherine Olsen, a Licensed Master Social Worker at Mount Sinai Hospital was submitted and dated October 10, 2018. This letter advised the Court that respondent Lopez was a patient at Mount Sinai Hospital since August 31, 2018, when he suffered a stroke of the brainstem, leaving him unresponsive and non-verbal. The letter indicated that Rachel Allen was Mr. Lopez’s longtime partner and had been determined to be his next of kin and medical decision maker pursuant to the Family Health Care Decision Act. On November 5, 2018 this Court issued a sua sponte order appointing a Guardian Ad Litem (“GAL”) to protect the rights and interests of respondent due to his ongoing hospitalization. The proceeding was then adjourned to December 7, 2018 for a GAL to appear on behalf of respondent. Stuart Adler, Esq. was appointed as Guardian Ad Litem to protect the interests of Craig Lopez on December 3, 2018. The court then changed the return date to December 19, 2018, which was the initial return date of petitioner’s current motion. Mobilization for Justice first appeared in the proceeding on behalf of respondent undertenant Rachel Allen on December 19th, a briefing schedule was submitted and the proceeding was adjourned to February 5, 2019. Petitioner moves for various relief as outlined above. First petitioner seeks to amend the pleadings to substitute Rachel Allen for undertenant Jane Doe. Petitioner points to CPLR section 1024, which directs that “[a] party who is ignorant, in whole or in part, of the name or identity of a person who may properly be made a party, may proceed against such person as an unknown party by designating so much of his name and identity as is known.” It goes on to explain “[i]f the name or remainder of the name becomes known all subsequent proceedings shall be taken under the true name and all prior proceedings shall be deemed amended accordingly.” Courts have consistently held that a defect in the caption of the petition which designates the respondent as “John Doe” is amendable nunc pro tunc. See, Teachers College v. Wolterdin, 77 Misc 2d81 (AT 1974). The Court sees no prejudice to either side of side by granting petitioner’s request to amend the pleadings as Allen has appeared in this proceeding and raised a succession defense. Accordingly, the portion of petitioner’s motion seeking to amend the pleading to substitute Rachel Allen for Jane Doe is granted. Petitioner also seeks a default judgment against respondent Craig Lopez since he has not filed an answer. However, respondent is currently in a vegetative state which occurred after his first appearance in this proceeding, now appears by his Guardian Ad Litem, and since the court has been advised that an Article 81 Guardianship is being filed in Supreme Court on behalf of respondent Lopez by The Split Rock Rehabilitation and Care Center where he currently resides, the portion of petitioner’s motion seeking a default judgment against respondent is denied without prejudice to renew at a later date, dependent on the appointment of an Article 81 Guardian for respondent Lopez. Petitioner seeks to strike undertenant respondent Rachel Allen’s affirmative defense of succession and seeks summary judgment on the issues of Allen’s defense of succession. Allen alleges she is a longtime partner of Lopez, who co-resided with him in a nontraditional family relationship for twelve years, prior to his recent permanent hospitalization. While an affirmative defense of succession is novel in the context of a chronic rent delinquency case, the court notes the underlying facts in this particular case are both tragic and unique, due to respondent Lopez’s stroke subsequent to his first appearance and his current vegetative state and permanent hospitalization. These compelling facts should not preclude Allen from asserting her affirmative defense of succession. There are clearly disputed issues of fact which remain outstanding regarding Ms. Allen’s family relationship with Lopez. Accordingly, the Court denies the portion of petitioner’s motion seeking to strike Allen’s affirmative defense of succession as well as the portion of petitioner’s motion seeking summary judgment on the issue of respondent’s succession defense. Petitioner, in the alternative, moves for discovery pursuant to CPLR 408, 3102 and 310. Respondent does not oppose petitioner’s request for discovery, but asserts that discovery should be limited to the time period set out in the statutory standard for proving co-residency in a succession claim, which is generally two years prior to the date of the permanent vacatur. See 9 NYCRR Sec. 2523.5(b) and 9 NYCRR Sec. 2520.6(o) (2) (RSC). Additionally, petitioner has shown an ample need to conduct discovery of respondent Allen, entitling them to discovery. Hughes v. Lenox Hill Hospital, 226 AD 2d 4 (1st Dept 1996); Antillean Holding Co. v. Lindley, 76 Misc 2d 1044 (Civ Ct, NY Co 1973). In New York University v. Farkas, 121 Misc 2d 643, 647 (Civ Ct, NY Co 1983), Judge Saxe formulated a test to determine whether “ample need” has been established to entitle a party seeking discovery in a summary proceeding 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. Here, petitioner has demonstrated that it has qualified for discovery under the test of New York University v. Farkas, particularly based on respondent Allen’s affirmative defense of succession. Accordingly, the portion of petitioner’s motion for leave to conduct discovery is granted on consent. Petitioner may serve respondent’s attorney with a notice to take her deposition. In responding to the notice to produce, Allen is given leave to redact all dollar amounts, social security numbers and/or medical information in the documents provided. Respondent shall produce documents to the extent they are within her possession and control Based on the above, this court grants petitioner’s alternative relief seeking discovery pursuant to CPLR Sections 408, 3102 an d3107, including an examination before trial and the production of documents, as provided in the proposed “Notice to Take Deposition Upon Oral Examination with Production of Documents” annexed to petitioner’s moving papers. Respondent shall provide documentation to the extent they are within her possession and control and for the period two years prior to August 2018, when respondent Lopez vacated the unit due to his permanent medical condition. The proceeding is marked off calendar for completion of discovery. For all the foregoing reasons, the portion of petitioner’s motion seeking to substitute Rachel Allen for Jane Doe is granted. The branch of the motion seeking a default judgment against respondent Lopez is denied without prejudice to renew, the portion of the motion seeking summary judgment is denied and the portion seeking discovery is granted on consent. After completion of discovery, the parties may move for restoration of this proceeding to the Court’s calendar either by stipulation between the parties or by motion to this court. Pursuant to this court’s November 5, 2018 order respondent shall continue to pay use and occupancy as it becomes due. The foregoing constitutes the decision and order of this court. Copies have been mailed to both sides. Dated: August 21, 2019 New York, New York
