The following papers numbered 1 were read and considered on the Petitioner’s proposed Subpoena Duces Tecum Papers Numbered Filed Papers 1 DECISION AND ORDER Petitioner submits a Subpoena Duces Tecum directed to non-party, Joan Magoolaghan, General Counsel to the Municipal Housing Authority for the City of Yonkers Administrators, of Section 8 Program (“MHACY”). The subpoena commands counsel to provide the information requested in the addendum to counsel for Petitioner, James G. Dibbini & Associates P.C., no later than November 1, 2021 at 5:00 P.M. Petitioner alleged that the material is intended to be produced at trial. The CPLR §3101(a) (4) notice stated: “The information is material and necessary to establish the amount due and owing from Kim Haynes to Landlord, 30 Gray Properties, LLC pursuant to the Housing Assistance Payments Contracts issued by MHACY, to demonstrate the specific portion of rent due from Kim Hayne’s to Landlord, 30 Gray Properties LLC, during the relevant period of December 2019 through and including present, and to demonstrate Kim Hayne’s defenses pursuant to her Tenant Declaration of Hardship filed by Kim Haynes with Yonkers City Court which is the basis of an active non-payment proceeding commenced by 30 Gray Properties, LLC in the Civil Court of the City of Yonkers, Housing Part.” (emphasis added) The documents requested in the subpoena duces tecum are: “Any and all documents and information pertaining to any/all rental assistance obtained and/or attempted to be obtained by Kim Haynes, filed or made, in any form, to MHACY pertaining to the property located at 30 Gray Place, Apt 4, Yonkers New York 10705, in support of her application(s) for rental assistance, including, but not limited to copies of share letters, applications, proof of income, proof of employment, W2′s, Tax returns, documentation pertaining to any proof of Kim Haynes’ other sources of income and/or other sources of rental assistance, leases, rent ledgers, receipts for rent, notices of outstanding rent, and/or correspondence from December 1, 2019 through and including the present.” The Court is aware of the difficulties encountered by both Petitioners and Respondents following the CEEFPA legislation. While the legislation permits Petitioner to challenge the Declaration, the Petitioner must first obtain information which may be exclusively within the Respondent’s possession. As a result, the Court has seen an influx of applications in various creative forms seeking discovery in the landlord-tenant part, including the above application. Petitioner specifically noted that it sought the above documentation to demonstrate Respondent’s defenses alleged in her Declaration of Hardship. Under the Tenant Safe Harbor Act, (hereinafter “TSHA”) the court would consider several factors in deciding as to whether the tenant has suffered a financial hardship. Those factors include: (i) The tenant or lawful occupant’s income prior to the COVID-19 covered period. (ii) The tenant or lawful occupant’s income during the COVID-19 covered period. (iii) The tenant or lawful occupant’s liquid assets; and (iv) The tenant’s or lawful occupant’s eligibility for and receipt of cash assistance, supplemental nutrition assistance program, supplemental security income, the New York State disability program, the home energy assistance program, or unemployment insurance or benefits under state or federal law. As Petitioner is aware, discovery in summary proceedings is not permitted as of right. Leave of court is required to avoid delay and preserve the summary nature of the proceedings. CPLR §408; Matter of Shore, 109 A.D.2d 842 (2d Dep’t. 1985). Petitioner must also demonstrate ample need for the sought-after disclosure and must establish that discovery will not delay the proceedings. Glusak v. Kishman, 7/1/80 N.Y.L.J. 12, col. 1 [App. Term 2d Dep't]. A judicial subpoena duces tecum is a court process to compel the attendance of a witness at a court proceeding or trial, and to produce items within the witnesses’ control. It is not to be used for discovery or to ascertain the existence of evidence. People v. Gissendanner, 48 N.Y.2d 542 (1979). Here, neither a trial nor Hardship Hearing have been requested. Rather, the matter is scheduled to appear on the Court’s calendar for purposes of advising the Court regarding the status of repairs to Respondent’s unit. In addition, the relief violates Public Housing Law §159, which provides: “Information acquired by an authority or municipality or by an officer or employee thereof from applicants for dwellings in projects of an authority or municipality or from tenants of dwellings thereof…shall be for the exclusive use and information of the authority or municipality in the discharge of its duties under this chapter and shall not be open to the public nor be used in any court in any action or proceeding pending therein unless the authority, municipality or successor in interest thereof is a party or complaining witness to such action or proceeding.” The information sought is the very information the statute intended to protect, “personal information given by tenants or their employers to housing officials as to tenants income and other personal matters.” 1941 N.Y. Laws Chapter 294, Bill Jacket p. 18. In addition, and notwithstanding the foregoing, the subpoena is returnable to Petitioner and not the Court. Petitioner’s application is accordingly denied and the Court declines to sign the subpoena. Dated and Entered: October 21, 2021
