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 2 REPLYING AFFIDAVITS 3 EXHIBITS STIPULATIONS OTHER Upon the foregoing cited papers, the Decision/Order in this is as follows: DECISION & ORDER This summary proceeding was commenced seeking rental arrears for the premises known as 662 Halsey Street, Brooklyn (the “Building”) apartment 2L (the “Apartment”). On December 11, 2019 respondent, represented by counsel, filed an Answer asserting defenses and counterclaims including overcharge, breach of the warranty of habitability and attorneys fees. Prior to December 17, 2019, the date the proceeding was first noticed to be heard, respondent satisfied the Petition. Petitioner then requested that the proceeding be discontinued as respondent had satisfied the arrears. Respondent opposed and requested that the proceeding be dismissed but that she be permitted to proceed on her counterclaims. The instant motion followed. Respondent moves for the petitioner’s claim for rent be dismissed but that she be allowed to continue here on her counterclaims and for discovery. Petitioner does not oppose dismissal of the rent claim nor respondent proceeding on her counterclaims but opposes the Court granting discovery. Petitioner states that it took the premises at a foreclosure sale and did not receive any of the records sought by respondent. It argues that since the Court cannot compel petitioner to produce documents not in its possession, the motion should be denied. “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). 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.” New York Univ. v. Farkas, 121 Misc. 2d 643, 646 47, 468 N.Y.S.2d 808, 811 (Civ. Ct. 1983). With regard to prejudice to the petitioner, it’s claim for rent has been satisfied so clearly there is no prejudice there. Respondent is the party making the request and therefore any delay and resulting prejudice would be of her own design. Further a review of the proposed discovery shows a fairly standard request that should take a minimal amount of time to complete, thereby reducing the delay of any potential resolution of this matter. While petitioner’s argument that they do not possess the documents sought may be a response to the discovery demand, it is not a basis to deny the request outright. Assuming that the information requested is appropriate, respondent should have the opportunity to make the demand and get a full response and not have her request preemptively denied. Accordingly, and without opposition, petitioner’s claim for rent through the date of the Petition is dismissed without prejudice to respondent’s counterclaims. The Court finds that respondent has met the criteria and has established ample need with regard for discovery on her counterclaims. Respondent is granted leave to serve the document production request annexed to the instant motion as Exhibit K. The proceeding is marked off calendar pending completion of discovery and may be restored on notice by either party or on consent by stipulation. This constitutes the Decision and Order of this Court. Dated: March 9, 2020
