Ludor Props. L.L.C. v De Brito

[*1] Ludor Props. L.L.C. v De Brito 2015 NY Slip Op 51261(U) Decided on August 24, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 24, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Hunter, Jr., Ling-Cohan, JJ.
570022/15

Ludor Properties L.L.C., Petitioner-Landlord-Respondent, -

against

Olga De Brito, Respondent-Appellant, -and- "John Doe" and "Jane Doe," Respondents.

Respondent De Brito, as limited by her briefs, appeals from that portion of an order of the Civil Court of the City of New York, New York County (Brenda S. Spears, J.), entered August 14, 2014, which denied her cross motion for discovery in a holdover summary proceeding.

Per Curiam.

Order (Brenda S. Spears, J.), entered August 14, 2014, insofar as appealed from, affirmed, with $10 costs.

Respondent De Brito's cross motion for reciprocal discovery in connection with her succession claim was properly denied. Respondent failed to demonstrate "ample need" for discovery to ascertain petitioner's "knowledge of [her] residence" in the apartment (see Valor Realty LLC v Ragno, 26 Misc 3d 132[A], 2010 NY Slip Op 50062[U] [App Term, 1st Dept 2010]; see also New York Univ. v Farkas, 121 Misc 2d 643, 647 [1983]). The facts relevant to respondent's succession claim, such as her residence in the apartment and the period of co-occupancy with the now-deceased tenant, are peculiarly within respondent's own knowledge (see generally 656 W. Realty, LLC v Blanco, 32 Misc 3d 128[A], 2011 NY Slip Op 51254[U] [App Term, 1st Dept 2011]).

Hon. Doris Ling-Cohan-Concurring opinion

I join my colleagues in voting to affirm the order under review which correctly denied respondent/tenant's cross motion for reciprocal discovery in this holdover proceeding, as respondent/tenant failed to demonstrate in her moving papers "ample need" for discovery, as required. See New York Univ. v. Farkas, 121 Misc 2d 643, 647 (Civ Court, New York County 1983); 150 West 82nd St Rlty Assoc v. Linde, 36 Misc 3d 155(A)(App Term, 1st Dept 2012)(tenant demonstrated ample need for discovery relating to apartment improvements); 545 [*2]Eighth Ave Assoc, L.P. v. Shanaman, 12 Misc 3d 66 (App Term, 1st Dept 2006)(disclosure granted to tenants who established ample need for disclosure sought in connection with their illusory tenancy defense); Treasure Tower Corp. v. Chen, 20 Misc 3d 1109(A) (Civ Court, New York County 2008)(respondent found entitled to disclosure as ample need exists "to determine information...directly related to the cause of action" [citation omitted]).

In concurring, however, I note that the lower court's denial of discovery, on the basis that the documentary discovery sought "would reveal the petitioner's litigation strategy", was improper as, indisputably, such a basis is not part of the applicable criteria in determining whether "ample need" for discovery has been established. See New York Univ. v. Farkas, 121 Misc 2d at 647; Smilow v. Ulrich, 11 Misc 3d 179 (Civ Court, New York County 2005). By its very nature, the exchange of discovery amongst the parties, reveals the other opposing party's strengths, weaknesses and "litigation strategy". As has been recognized, even in summary proceedings, "disclosure may assist the speedy disposition of a case when it has served the purpose of clarifying the issues for trial. Further, disclosure may often lead to the settlement of cases or a successful motion for summary judgment as a direct result of the information learned." . New York Univ. v. Farkas, 121 Misc 2d at 645.

Additionally, to the extent that the lower court relied on "prejudice" to petitioner as a factor to deny respondent a right to discovery, such rationale was also incorrect. While prejudice is indeed a factor which the Farkas court considered, the "prejudice" contemplated is in the nature of inappropriate "delay" occasioned by the granting of discovery, which the Farkas court indicated could be alleviated by the fashioning of an appropriate order, such as, "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". New York Univ. v. Farkas, 121 Misc 2d at 647. Here, there can be no prejudice to petitioner/landlord, as the case was marked off the court's calendar so that petitioner could conduct discovery with respect to respondent.

Decision Date: August 24, 2015