Recitation, as required by CPLR 2219(A), of the papers considered in the review of this Notice of Motion: PAPERS NUMBERED NOTICE OF MOTION AND AFFIRMATION ANNEXED 1 ORDER TO SHOW CAUSE AND AFFIRMATION ANNEXED ANSWER AFFIRMATION REPLYING AFFIDAVITS 3 EXHIBITS STIPULATIONS OTHER Order 7/30/19 2 Upon the foregoing cited papers, the Decision/Order in this is as follows: Petitioner seeks leave to conduct discovery, including production of documents and an examination before trial of Eldridge Lyons. Edwidge Lyons originally appeared in this proceeding, represented by counsel, and asserted succession. Letaya Lyons, who was a minor at the time this proceeding was commenced, did not answer the Petition. A trial commenced on March 22, 2018 and continued on June 19, 2018. It was thereafter rescheduled, by the Court, to October 12, 2018. Neither the Respondent, nor her counsel, appeared on the final date. The Court resumed the trial and finished it on that date. On November 7, 2018 a decision was rendered which awarded the Petitioner a final judgment of possession. Edwidge Lyons moved by a pro se Order to Show Cause to vacate the default. The Court notes that Ms. Lyons attorney, Gerald P. Douglas, was disbarred on May 29, 2019. The court granted the Order to Show Cause pursuant to an Order dated April 15, 2019. The decision vacated the default judgment against Edwidge Lyons and Jane Doe and deemed a proposed answer by Letaya Lyons as served and filed. The proceeding was set down for a new trial as the original presiding judge retired from the bench. The Petitioner currently seeks discovery resulting from the new answer interposed by Letaya Lyons. Edwidge Lyons has withdrawn her defense seeking succession and Letaya Lyons is now asserting succession to her grandmother’s apartment. Letaya Lyons now appears by counsel and has consented to discovery1, however, Edwidge Lyons now appears pro se and opposes the motion. She argues that she should not be required to provide discovery as she has withdrawn her succession claim and additionally that Petitioner’s delay in making this application necessitates a denial.2 “As a general rule, disclosure may be granted in a summary eviction proceeding if ample need is shown and disclosure will not unreasonably delay the proceedings.” Scherer, Residential Landlord-Tenant Law in New York §13:51 (2014). “Here, it is the landlord rather than the tenant who is requesting disclosure. Thus any claims of prejudice to the landlord’s desire for a prompt determination of the issues and recovery of the rent are absent. Instead, the landlord has made a choice that the clarification of the facts outweigh the risks of delay.” New York Univ. v. Farkas, 121 Misc 2d 643, 646©47, 468 N.Y.S.2d 808, 811 (Civ. Ct. 1983). Additionally, there are six factors that have been established in determining whether discovery is warranted. They are, “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 purposes 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.” Id. The Court finds that the Petitioner has met the criteria that there is ample need for discovery pertaining to Edwidge Lyons. The answer submitted by Letaya Lyons alleges in her First Affirmative Defense that she “has lived in the apartment with her grandmother since October 11, 2000, when she was born.”3 This, however, is contrary to subpoenaed documents that were produced by the New York City Housing Authority.4 Leases were produced between NYCHA and Edwidge Lyons for apartment 02C at 3045 Avenue X, Brooklyn, NY 11235. On the Lease Addendums and Rent Notices dated May 29, 2014, May 18, 2015 and August 1, 2016, Edwidge Lyons listed Letay Lyons Thomson as an authorized member of her household. Edwidge Lyons does not, on this record, dispute that she executed the leases and notices, nor does she refute that the referenced household member is her daughter, Letaya Lyons. Additionally, the Court notes that these leases were executed during the relevant window period. The tenant of record, Leonne Lyons, passed away on January 1, 20175. This establishes the window period to be January 1, 2015 through the date of death. Letaya Lyons, a/k/a Le’taya Lyons-Thomson, was born on xx-xx-xxxx.6 Accordingly, the Respondent was a minor during the window period. “It is an established presumption that the residence of the child is the residence of the parents (Catlin v. Sobol, 77 NY2d 552, 559; Matter of Stillman v. School Dist., 60 Misc 2d 819, affd on opn at Special Term 34 AD2d 553).”‘ “Th[e] presumption may be overcome by proof showing that the parties have surrendered parental control and that such control is being exercised by some other person with whom the child [lives]“‘ ” (Catlin v. Sobol, supra, at 559).” Quiala v. Laufer, 180 AD2d 31, 34, 584 N.Y.S.2d 786 (1992) The Court recognizes that the Respondents have supplied many documents, however, the inconsistency warrants an inquiry. The demand however, also seeks to review of the contents of the sealed court file and a copy of the transcripts of all testimony in the Family Court matter Edwidge Lyons v. Mathieu Jean-Francois, docket No. 0-01989/17. “The records of any proceeding in the family court shall not be open to indiscriminate public inspection. However, the court in its discretion in any case may permit the inspection of any papers or records.”7 “Section 166 authorizes the Family Court to ‘…permit the inspection of any papers or records’ which are presumably confidential. As noted in the Original Commentary, although the provision has been addressed in only a handful of reported cases, ‘inspection’ has usually been limited to compelling circumstances and conditioned on an ‘in-camera’ evaluation. The determination is not always obvious and may entail a careful balancing of interests. This is not news to the Family Court, where such motions are ordinarily brought.” NY Fam. Ct. Act §166 (McKinney) In support of the motion, movant argues that a conversation took place with the attorney for the respondent in the Family Court case and that they indicated that the case involved this residence. Movant, not a party to the Family Court proceeding, is asking this Court to order sealed records to be produced in court and subjected to review based merely upon this hearsay statement. “[A] third-party request should be scrutinized very carefully.”8 The Court cannot support a fishing expedition. The Court concludes that movant, does not assert compelling reason for the production of sealed records. Accordingly, this Court will deny that part of the discovery demand seeking the sealed Family Court records. This is without prejudice to movant applying to the Family Court to have the records unsealed and made available for review. Pursuant to foregoing the motion is granted subject to the above mentioned exception. The proceeding is marked off calendar to allow time for the compliance with this Order and may be restored by either party on notice. Dated: September 16, 2019
