Amalgamated Dwellings, Inc. v Blutreich

[*1] Amalgamated Dwellings, Inc. v Blutreich 2010 NY Slip Op 51394(U) [28 Misc 3d 135(A)] Decided on August 5, 2010 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 5, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, J.
570198/10

Amalgamated Dwellings, Inc., Petitioner-Landlord-Respondent, - -

against

Ira Blutreich and Iris Blutreich, Respondents-Tenants-Appellants.

Tenants, as limited by their briefs, appeal from that portion of an order of the Civil Court of the City of New York, New York County (Marcia J. Sikowitz, J.), dated October 2, 2009, which, upon reargument, adhered to a prior order granting landlord's motion to strike tenants' first and second affirmative defenses, denying tenants' cross motion to dismiss the petition, and denying in part tenants' cross motion for disclosure in a holdover summary proceeding.

Per Curiam.

Order (Marcia J. Sikowitz, J.), dated October 2, 2009, insofar as appealed from, modified to vacate that portion of the order which, upon reargument, adhered to a prior order denying in part tenants' cross motion for disclosure, and the matter remanded for further proceedings consistent herewith; as modified, order affirmed, without costs.

Civil Court properly adhered to its prior determination to strike tenants' affirmative defense premised upon landlord's failure to serve tenants with a notice to cure, since landlord sought to terminate the tenancy on the ground that tenants engaged in a pattern of objectionable conduct, which was not susceptible to cure (see generally Adam's Tower Ltd. Partnership v Richter, 186 Misc 2d 620 [2000]). Civil Court also properly adhered to its prior determination to strike tenants' affirmative defense premised upon the alleged invalidity of landlord's board of directors' decision to terminate the tenancy. Contrary to tenants' contention, the manner in which the board voted to terminate the tenancy comported with the requirements of the proprietary lease.

Effective appellate review of that portion of the reargument order adhering to the court's prior disclosure order is not possible on the record before us. In the prior order, the court partially granted tenants' disclosure requests. While tenants had sought broad disclosure regarding their Pullman defense (40 W. 67th St. v Pullman, 100 NY2d 147 [2003]), including document production and depositions of board members, the court limited disclosure "solely to the dates of the two Board meetings at issue[, i.e. October 28, 2005 and January 5, 2006]." The court did not indicate whether tenants were entitled to documents, depositions or both relating to the two meetings, and the court adhered to this ambiguous determination on reargument. [*2]Complicating matters further, according to representations made at oral argument of this appeal, some relevant documents have been provided to tenants.

In light of the ambiguity in the court's disclosure directive and the fact that tenants have received some (vaguely described) disclosure relevant to their Pullman defense, we cannot now gauge accurately whether the court, upon reargument, properly adhered to its prior disclosure directive. Therefore, we modify the reargument order to vacate that portion of it adhering to the disclosure ruling in the prior order to permit Civil Court to clarify the scope of disclosure permitted under the prior order, and ascertain what, if any, disclosure remains outstanding (see generally Levine v Pine, 104 AD2d 402 [1984]).[FN1]

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
Decision Date: August 05, 2010 Footnotes

Footnote 1:Although tenants purport to appeal from that portion of a separate order of Civil Court (Schneider, J.), dated September 8, 2009, which denied their motion for additional disclosure, tenants did not file a notice of appeal from that order. In any event, we would not disturb that order if it were before us, since at this juncture tenants have not demonstrated ample need for the additional disclosure.