Recitation, as required by CPLR §2219(a), of the papers considered in the review of the motion by Petitioners Ali Cornelius, Oneka Dunbar and Edith Thompson, cross-motion by Respondent-Owners 1560 GC LLC, Chestnut Holdings of New York, Inc, Jonathan Wiener and Ben Rieder and motion by Christine Thompson: Papers Numbered Petitioners’ Notice of Motion, Affirmation in Support, Memorandum of Law and Exhibit A and B 1 Respondents’ Notice of Cross-Motion, Affirmation in Support of Cross-Motion and in Opposition to Petitioners’ Motion, Memorandum Of Law and Exhibits A through C 2 Petitioners’ Reply Affirmation, Memorandum of Law and Exhibits A through G 3 Christine Thompson’s Notice of Motion, Affirmation and Affidavit in Support, Memorandum of Law and Exhibit A 4 ADDITIONAL CASES Oneka Dunbar, Petitioner v. 1560 GC LLC; Chestnut Holdings of New York, Inc; Jonathan Wiener; Ben Rieder, Respondent-Owners, New York City Department of Housing Preservation and Devlopment (“DHPD”), Co-Respondent, Department of Buildings of the City of New York (“DOB”), Co-Respondent; L&T 13394/20 Edith Thompson, Petitioner v. 1560 GC LLC; Chestnut Holdings of New York, Inc; Jonathan Wiener; Ben Rieder, Respondent-Owners, New York City Department of Housing Preservation and Devlopment (“DHPD”), Co-Respondent, Department of Buildings of the City of New York (“DOB”), Co-Respondent; L&T 13404/20 DECISION/ORDER After oral argument and upon the foregoing cited papers, the decision and order on these motions is as follows: These three HP proceedings were commenced by Petitioners Ali Cornelius, Edith Thompson and Oneka Dunbar seeking an order to correct violations in the apartments that are the subject of each of these consolidated proceedings. The proceedings were filed in the aftermath of a tragic fire at the building where the apartments that are the subjects of these proceedings are located. The fire caused four fatalities and resulted in vacate orders being placed on several apartments at the building including the apartments that are the subjects of these proceedings. In each of these proceedings, an order to correct was entered. In the proceedings filed by Ali Cornelius and Oneka Dunbar the order to correct required Respondents 1560 GC LLC, Chestnut Holdings of New York, Inc, Jonathan Wiener and Ben Rieder (“Respondents”) to correct the underlying violations making the apartments uninhabitable and cause the vacate orders to be lifted by July 31, 2020. In the proceeding filed by Edith Thompson the vacate order was required to be lifted by August 15, 2020. None of the vacate orders have been lifted to date. Still to be determined at an upcoming hearing are motions by each petitioner seeking a finding that Respondents are in civil contempt of court, and further relief against Respondents if such a finding is made, as well as a cross-motion by Respondents seeking an extension of the time to comply with the orders to correct and cause the vacate orders to be lifted.1 Upon an oral application by Respondents, these proceedings were consolidated after the rulings setting the abovementioned motions down for a hearing. Since the proceedings were consolidated, the three motions which are determined by this Decision/Order were filed. One of the motions2 seeks to substitute Christine Thompson as the petitioner in Thompson v. 1560 GC LLC, et al, Bronx County L&T Index No. 13404/20, due to the death of Edith Thompson, her mother, with whom she asserts she resided in the apartment that is the subject of that proceeding. No opposition has been submitted to the motion. As Respondents have not contested that Christine Thompson is a lawful occupant of the apartment, Ms. Thompson’s motion is granted. The other two motions directly relate to the upcoming hearing. Petitioners Ali Cornelius, Christine Thompson and Oneka Dunbar (“Petitioners”), seek an order granting them leave to conduct discovery.3 Respondents oppose this motion. Further, Respondents have cross-moved,4 seeking an order barring Petitioners Christine Thompson and Oneka Dunbar from presenting evidence at the hearing. Petitioners oppose this cross-motion. Petitioner’s Motion for Leave to Conduct Discovery Petitioners have moved, pursuant to CPLR 408, for leave to conduct discovery. The forms of discovery they have sought are an inspection of the premises that is the subject of these proceedings and the production of documents by Respondents related to the insurance policies covering the building and the work done to rehabilitate the building after the fire. In the alternative, if discovery is not granted, Petitioners seek an order precluding Respondents from presenting testimony and evidence at the hearing in support of their defense to the contempt motion. Petitioners argue they have demonstrated ample need for discovery. Petitioners assert that the requested discovery is indispensable for their preparation for the hearing and necessary for them to be able to assess Respondents’ defense against the contempt motion and arguments in support of Respondents claim for more time to comply with the orders to correct. In opposition, Respondents argue Petitioners have not demonstrated the requisite ample need for a party in a summary proceeding to be granted leave to conduct discovery. Additionally, Respondents argue the discovery that has been demanded does not relate to the specified purpose of the upcoming hearing, that the requests are overly broad and if discovery is granted they will be severely prejudiced. Discovery is permitted in a summary holdover proceeding only by leave of court. CPLR 408. Smilow v. Ulrich, 11 Misc 3d 179 (Civ Ct NY County 2005); Plaza Operating Partners Ltd. v. IRM(U.S.A.) Inc., 143 Misc 2d 22 (Civ Ct NY County 1989); New York University v. Farkas, 121 Misc 2d 643 (Civ Ct NY County 1983); see also NYC Admin Code §27-2116(a). This requirement is meant to prevent unnecessary delays to a summary proceeding which, by its summary nature, is meant to be litigated in an expeditious manner. Plaza Operating Partners Ltd. v. IRM (U.S.A.) Inc., 143 Misc 2d 22 (Civ Ct NY County 1989). However, “a summary proceeding, despite its name, is nonetheless a judicial proceeding, and…the ends of justice ought not to be sacrificed to speed.” Smilow v. Ulrich, 11 Misc 3d 179 (Civ Ct NY County 2005), quoting from 42 W. 15th St. Corp. v. Friedman, 208 Misc 123, 125 (App Term 1st Dept 1955). Therefore, where a party has demonstrated “ample need” for discovery it should be granted. Georgetown Unsold Shares, LLC v. Ledet, 130 AD3d 99 (2d Dept 2015); Lonray, Inc. v. Newhouse, 229 AD2d 440 (2d Dept 1996); New York University v. Farkas, 121 Misc 2d 643 (Civ Ct NY County 1983); 673 Antillean Holding Co. v. Lindley, 76 Misc 2d 1044 (Civ Ct NY County 1973). The factors a court must consider in determining a motion for discovery in a summary proceeding are: (1) whether the party seeking discovery has asserted facts to establish a cause of action or defense; (2) whether there is a need to determine information directly related to the cause of action or defense; (3) whether the requested discovery is closely tailored and is likely to clarify the disputed facts; (4) whether prejudice will result from the granting of an application for discovery; and (5) whether the court can fashion or condition the ordered discovery to alleviate any resulting prejudice. New York University v. Farkas, 121 Misc 2d 643 (Civ Ct NY County 1983); see also, Georgetown Unsold Shares, LLC v. Ledet, 130 AD3d 99 (2d Dept 2015); Lonray, Inc. v. Newhouse, 229 AD2d 440 (2d Dept. 1996). Here, Petitioners have demonstrated the need for discovery. Respondents do not dispute Petitioners have stated a claim of contempt in that there is no dispute Respondents have not complied with the orders to correct that have been entered in these proceedings. Further, Petitioners have stated an appropriate need to obtain information for the upcoming hearing related to the defense Respondents have asserted to Petitioners’ motion to hold them in contempt and in support of their motion for an extension of motion — that the insurance claims process was prolonged and that the damage to, and asbestos exposure in, the areas of the building where the apartments that are the subject of this proceeding are located was so extensive after the fire that they could not possibly comply with the orders to correct for reasons beyond their control. Respondents’ argument that Petitioners should be denied discovery because they have nothing left to prove at the upcoming hearing, related to their non-compliance with the orders to correct, is misplaced. Discovery is not only appropriate to obtain information necessary for Petitioners to prove the elements of their case. It is also appropriate in situations such as this where information requested through discovery is needed to allow Petitioners to assess and be able to rebut the defenses or claims made by Respondents and where the facts making up the defenses and claims are in the exclusive control of Respondents. 50 W. 96th Realty LLC v. Lysle, 61 Misc 3d 134(A) (App Term 1st Dept 2018); 656 West Realty LLC v. Blanco, 32 Misc 3d 128(A)(App Term 1st Dept 2011); 217 E. 82nd St. Co. v. Perko, 10 Misc 3d 146(A) (App Term 1st Dept. 2006); 85th Estates Co. v. Kalsched, N.Y.L.J., May 18, 1992, at 27, col 4 (App Term 1st Dept.); Bachman v. Soler, 28 Misc 3d 1203(A) (Civ Ct NY County 2010). To the extent Petitioners seek leave to inspect the subject building, pursuant to CPLR 3120(l)(ii), such inspections are routinely granted when a central issue in a proceeding is the condition of the building to be inspected. Iskowitz v. Forkosh Const. Co., Inc., 269 AD2d 131 (1st Dept 2000); see also, 153-155 Essex St. Tenants Assn. v. Kahan, 4 Misc 3d 1008(A) (Civ Ct NY County 2004). Respondents are correct that the delay in moving for access to inspect the building may weaken the probative value of the evidence Petitioners’ agents will be able to collect. However, that is not a basis to deny Petitioners access to inspect the premises where it is foreseeable that the inspection will help Petitioners prepare for the upcoming hearing (Cortes v. ALN Rest., Inc., 137 AD3d 467 [1st Dept 2016]) particularly where, as here, the vacate orders have not yet been lifted and Respondents are seeking an extension of time to comply with the orders to correct. It is expected the current state of the building and estimates of the time it will take for the remaining work needed for the vacate orders to be lifted will be a contested issue at the hearing. Additionally, for the most part, the discovery requests made by Petitioners are designed to obtain information that is relevant to the issues Respondents have asserted they will be raising at the upcoming hearing and “reasonably calculated to elicit information that might lead to admissible evidence.” Quality & Ruskin Assoc. v. London, 8 Misc 3d 102 (App Term 2d Dept 2005) quoting Lager Assoc. v. City of New York, 202 AD2d 398 (2d Dept 1994). To the extent they are overly broad, one function of the court in determining a motion seeking disclosure in a summary proceeding is fashioning the ordered disclosure to alleviate any prejudice to the party against whom the disclosure is ordered. Georgetown Unsold Shares, LLC v. Ledet, 130 AD3d 99 (2d Dept 2015); Lonray, Inc. v. Newhouse, 229 AD2d 440 (2d Dept 1996); New York University v. Farkas, 121 Misc 2d 643 (NY Civ Ct NY County 1983). Based on the foregoing, Petitioners’ motion for leave to conduct discovery is granted. Respondents are required, pursuant to CPLR 3120(l)(ii), to provide Petitioners’ agents supervised access to those areas of the apartments that are the subject of these proceedings, as well as to those areas of the building over which Respondents have control where the damage and/or asbestos exposure have impacted on Respondents’ ability to comply with the orders to correct that have been entered in these proceedings, for the purpose of inspecting, measuring, surveying, testing, photographing or recording by motion pictures or video. Such access is granted on the condition that Petitioners’ agents waive any claim of liability they may have against Respondents or their agents for any injuries they may sustain during the inspections and on condition they wear protective clothing and equipment reasonably required by Respondents and their agents. Such access is required to be provided upon a notice or subpoena, pursuant to CPLR 3120(2), served by Petitioners upon Respondents within 30 days of the date of this Decision/Order or at such later date agreed upon by the parties. As to Petitioners’ document request number one, Respondents are only required to produce copies of property insurance policies for the building that will be introduced into evidence at the upcoming hearing or that are referred to in any manner by Respondents’ witnesses. Petitioners’ document request number two, related to communications, as defined by Petitioners’ notice to produce, between Respondents and its insurers concerning the fire is overly broad and Respondents are not required to provide the requested documents. As to Petitioners’ document request number three, Respondents are required to produce all records of payments made to them by any and all insurance policies that resulted from the fire as well as records of payments made by such insurance companies to Respondents’ agents of which they have copies. To the extent Respondents are aware of such payments made to their agents of which they do not have a copy, they are required to provide a list of the insurance carrier that made the payment and the recipient of the payment. Respondents are required to produce the documents and/or reports in document request number four. Respondents are not required to comply with documents requests five and six. Those communications, documents and/or reports may be obtained by a subpoena served on the New York City Fire Department. As to document request number seven, Respondents are only required to provide those documents and/or reports provided by any architect, building engineer and/or asbestos contractor they have hired. To the extent any of the documentation this decision and order requires Respondents to produce, as stated above, have already been provided by Respondents in the context of these proceedings, Respondents need only list the documents and cite to where/when it has already been provided in its response to Petitioners’ document request. Similarly, if any of the documentation Respondents are required to produce have been filed with a public agency and can be subpoenaed by Petitioners, Respondents need only list such documents and the agency with which it has been filed in response to Petitioners’ document request. Respondents are required to deliver all the document requests that have been granted to Petitioners within 30 days of the date of this Decision/Order or at such later time agreed upon by the parties. Respondents’ Cross-Motion to Bar Petitioners Thompson and Dunbar from Presenting Evidence at Hearing Respondents have cross-moved for an order precluding Petitioners Thompson and Dunbar from presenting witnesses or evidence at the upcoming hearing on Petitioners’ motion seeking to hold Respondents in civil contempt and Respondents’ motion seeking an extension of time to comply with the orders to correct; for an order precluding all the Petitioners from presenting “lay witnesses” at the upcoming hearing; and precluding all the Petitioners’ “experts” from testifying. Respondents argue Petitioners Thompson and Dunbar should be barred from presenting witnesses or evidence at the upcoming hearing because they failed to comply with a court ordered deadline for the submission of exhibits the parties intend to present at the hearing. Respondents base their argument on an e-mail, dated March 1, 2021, sent by the court attorney who works with the Honorable Shorab Ibrahim to the attorneys for the parties in the proceedings commenced by Petitioners Thompson and Dunbar.5 In the e-mail the court attorney suggests possible adjourn dates on which the proceeding would be placed on the court’s calendar and states, “Both sides should email any proposed exhibits two weeks prior to the adjourn date and cc all parties. The exhibits should be scanned individually, and each exhibit labeled. Both sides can email objections a week prior to the adjourn date and cc all parties…” It is undisputed that Respondents submitted exhibits it intended to present at a hearing scheduled by Judge Ibrahim prior to the consolidation of these proceedings and the filing of the motion decided by this decision and order and Petitioners did not submit any exhibits. Respondents assert the e-mail should be considered tantamount to a court order.6 Further, they argue that based on Petitioner Thompson’s and Dunbar’s non-compliance with the e-mail they should be barred from presenting any evidence in support of their claims. In opposition, Petitioners Thompson and Dunbar argue the e-mail from the court attorney does not constitute an order issued by the court, rather it provides instructions to the parties on the procedures to be followed in submitting exhibits to be presented at the hearing to the court in advance. Further, they assert nothing in the e-mail provides the basis for Respondents’ conclusion that the failure to comply with the instructions would result in Petitioners Thompson and Dunbar being barred from presenting their cases; that the instructions should not have been included in a string of 19 e-mails where it could easily be overlooked; and that any failure to submit exhibits as instructed in the e-mail should be considered law office error. Preliminarily, it is not a valid excuse, particularly while the court is functioning for the most part on a virtual basis during the COVID-19 pandemic, for a party to complain about a court providing instructions related to the conduct of a proceeding by e-mail. Plainly, each party is expected to read every e-mail sent by a court closely. Nevertheless, Respondents’ argument is misplaced. Respondents have provided no legal authority for the cited e-mail, which does not set a specific date for the next court appearance or a specific date by which the exhibits must be submitted to be construed as a court order and this court does not view the e-mail as such. In any case, while a court may impose sanctions on parties for their failure to follow rules set by the court for the conduct of a hearing, under these circumstances, it would be unduly harsh to penalize Petitioners Thompson and Dunbar for their failure to present their exhibits prior to the conference, scheduled after the March 1, 2021 e-mail, by barring them presenting any evidence at the hearing particularly where, as here, the e-mail makes no mention of witnesses and Respondents have not articulated any prejudice they have suffered. Additionally, Respondents’ citation to caselaw in which parties have had pleadings stricken, based on CPLR 3126, for their failure to disclose information that should have been disclosed is readily distinguishable. The exhibits mentioned in the March 1st e-mail are not forms of discovery ordered by the court. Moreover, even if the e-mail is construed as an order issued by the court, the barring or Petitioners Thompson and Dunbar from presenting evidence, like the striking of a pleading, is only appropriate where there has been a clear showing that the failure to comply with a discovery order was willful and contumacious. McMahon v. Cobblestone Lofts Condominium, 134 AD3d 646 (1st Dept 2015); Krause v. Lobacz, 131 AD3d 1128 (2d Dept 2015); Reidel v. Ryder TRS, Inc., 13 AD3d 170 (1st Dept 2004); Heller v. Winter, 239 AD2d 120 (1st Dept. 1997). No such showing has been made here by Respondents. Accordingly, Respondents’ cross-motion is denied to the extent it seeks an order barring Petitioners Thompson and Dunbar from presenting evidence at the hearing. Respondents also argue all the Petitioners should be barred from presenting any “lay witnesses” at the upcoming hearing because their testimony would “lack an adequate factual foundation” and be “speculative.” Petitioners oppose this aspect of the motion. They argue that they are entitled to testify in these HP proceedings they have commenced particularly in the context of the hearing on their contempt motion in support of their claim for damages they have suffered as a result of Respondents’ civil contempt of court. Respondents may be correct that Petitioners and “lay witnesses” do not have the level of expertise in the repair of fire damaged buildings to rebut the expected evidence Respondents will be presenting at the hearing in defense of Petitioners’ motion seeking to hold them in contempt of court and in support of their motion for an extension of time to cause the vacate order to be lifted. However, that is not a basis for an order barring Petitioners and other “lay witnesses” they call from providing any testimony at the hearing. Moreover, Respondents may seek to provide evidence as to the prejudice they have suffered based on Respondents’ failure to comply with the orders to correct. U.S. Bank National Association v. Sirota, 189 AD3d 927 (2d Dept 2020); El-Dehdan v. El-Dehdan, 114 AD3d 4 (2d Dept 2013).7 For these reasons, Respondents’ cross-motion is denied, to the extent it seeks an order barring the Petitioners from presenting evidence at the hearing, without prejudice to Respondents’ right to raise appropriate objections to the entry of such evidence into the hearing record when it is presented. Further, Respondents argue an order should be entered precluding all the Petitioners from presenting expert testimony because such testimony will have an inadequate foundation and be purely speculative. Based on the court’s granting, in part, Petitioners’ motion seeking leave to conduct discovery including an inspection of the premises, this aspect of Respondents’ cross-motion is denied, without prejudice to Respondents’ right to raise appropriate objections to the entry of such evidence into the hearing record when it is presented.8 Accordingly, for the reasons stated above, Petitioners’ motion for discovery is granted and Respondents are ordered to permit the inspection of the subject building and provide the requested documents to the extent stated above. Further, for the reasons stated above, Respondents’ cross-motion is denied. This proceeding is placed back on the court’s calendar on September 30, 2021, at 11:00 a.m. for a video/phone conference. The parties are required to appear before the court by video or phone. If needed, call 718-618-3566 or e-mail [email protected], prior to the court date, for information on how to appear by video/telephone conference. If appearing by video or phone is not possible you must notify the court at 718-618-3566 at least 3 business days before September 30, 2021. This constitutes the decision and order of the court. Dated: August 12, 2021
