Recitation, as required by CPLR 2219 (a) of the papers considered in review of this motion by NYSCEF Doc Nos: 8-25. AMENDED DECISION/ORDER1 PROCEDURAL POSTURE AND BACKGROUND This is a summary nonpayment proceeding commenced against the unregulated tenants of record, Fernando Gomez and Wesley Haynes (“respondents”). (NYSCEF Doc No. 1, petition.) Petitioner seeks rent arrears accruing at the monthly rental amount of $3,200 (Id., 6.) Petitioner originally pleaded that the premises are not subject to rent regulation due to substantial rehabilitation of the property after January 1, 1974. (Id., 7.) A stipulation was later so ordered, in which the petition was amended to indicate that the premises was deregulated due to “high rent decontrol.” (NYSCEF Doc No. 6, stipulation 7.) Respondents filed an answer without the assistance of counsel alleging a general denial, breach of the warranty of habitability, and rent overcharge. (NYSCEF Doc No. 3, answer.) Thereafter, respondents retained counsel who filed an amended answer, without objection from petition. (NYSCEF Doc No. 7.) Respondents include in the amended answer that petitioner has not obtained a proper certificate of occupancy, and that respondents have been constructively evicted. Respondents also claim that of rent overcharge and add a counterclaim for an award of treble damages, as well as for attorney fees. Respondents have moved pursuant to CPLR 408 for leave to conduct discovery on their claim rent overcharge claim, reaching back in time to 2001. (NYSCEF Doc No. 8, notice of motion [sequence 1]; NYSCEF Doc No. 9, respondents’ attorney’s affirmation in support; NYSCEF Doc No. 10, Gomez affidavit.) Petitioner opposes and cross-moves for use and occupancy pursuant to Real Property Actions and Proceedings Law (“RPAPL”) §745 (2). (NYSCEF Doc No. 17, notice of cross-motion [sequence 2].) In opposition to respondents’ motion in chief, petitioner states that respondents are barred from seeking discovery beyond the base date because there is no evidence of fraud: “[E]ven if the DHCR’s rent registrations for the subject apartment are properly under review by this Court, such records do not provide evidence of fraud in this matter. See Grimm v. DHCR, supra, 15 NY3d 358, 367, 912 NYS2d 491 (2010). The Court of Appeals in Grimm and Regina has expressly stated landlords are not required to provide documentation back beyond the base date unless the Respondent has produced evidence of a fraudulent scheme to deregulate. A large rent increase on its own is not evidence of fraud.” (NYSCEF Doc No. 18, petitioner’s attorney’s affirmation
25-26.) In addition to Regina Metro Co. LLC v. State Div. of Hous. & Community Renewal, 35 NY3d 332 (2020), and Grimm v. New York State Div. of Hous. & Community Renewal Off. Of Rent Admin., 15 NY3d 358 (2010), petitioner cites to Thornton v. Baron, 5 NY3d 175 (2005), and argues that in Thornton “the Court of Appeals created the one and only exception to the 4-Year Interrelated Rule, i.e., a common law fraud exception where a fraudulent scheme to deregulate an apartment can be established.” (Id., 27.) Petitioner also cites to Conason v. Megan Holding, LLC, 25 NY3d 1 (2015), as creating the standard for piercing the base date. Nevertheless, petitioner seeks to have this court narrowly hold the definition of a “colorable claim” to the specific facts of those cases. (Id.,
