494 Hudson LLC v Estey

[*1] 494 Hudson LLC v Estey 2009 NY Slip Op 51786(U) [24 Misc 3d 144(A)] Decided on August 18, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 18, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
570778/08.

494 Hudson LLC, Petitioner-Landlord-Appellant- Cross-Respondent,

against

Robert Estey, Respondent-Tenant-Respondent- Cross-Appellant, and E. Thorne Cooper, "John Doe" and/or "Jane Doe", Respondents-Undertenants.

Landlord, as limited by its briefs, appeals from that portion of an order of the Civil Court of the City of New York, New York County (Thomas M. Fitzpatrick, J.), entered November 7, 2008, which denied its motion for leave to conduct disclosure and to strike tenant's demand for a bill of particulars in a holdover summary proceeding. Tenant cross-appeals from so much of the aforesaid order as denied his cross motion for summary judgment and granted landlord's motion for interim use and occupancy.

Per Curiam.

Order (Thomas M. Fitzpatrick, J.), entered November 7, 2008, modified to vacate tenant's demand for a bill of particulars and to grant petitioner-landlord leave to depose tenant; as modified, order affirmed, without costs.

We agree that this holdover summary proceeding, based upon allegations that tenant illegally sublet the stabilized apartment premises to an "ever-changing group of persons," is not susceptible to summary dismissal. The evidence contained in the pre-discovery record now before us raises several unresolved questions of fact, including those relating to the identity of the apartment occupant(s) and the nature of the financial and living arrangements between tenant and the occupant(s). These matters, peculiarly within the tenant's knowledge, should be [*2]resolved following limited disclosure, which we direct (see Hartsdale Realty Co. v Santos, 170 AD2d 260 [1991]), and a plenary trial on the merits.

Tenant's demand for a bill of particulars, replete with palpably improper requests for evidentiary material, should have been vacated (see generally Franklin, Weinrib, Rudell & Vassallo, P.C., v Stellato, 240 AD2d 301 [1997]). We have considered the parties' other requests for
affirmative relief on the appeal and cross appeal, and find
them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: August 18, 2009