41 E. 1st St. Rehab Corp. v Pearson

[*1] 41 E. 1st St. Rehab Corp. v Pearson 2011 NY Slip Op 52168(U) Decided on December 6, 2011 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 6, 2011
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ
570571/11.

41 East 1st Street Rehab Corp., Petitioner-Landlord-Appellant,

against

Linnea Pearson a/k/a Lee Pearson Respondent-Tenant-Respondent, -and- "John Doe" and "Jane Doe," Respondents-Undertenants-Respondents.

Landlord appeals from (1) an order of the Civil Court of the City of New York, New York County (John H. Stanley, J.), dated February 16, 2011, which denied its motion for leave to conduct additional discovery of nonparty witnesses in a holdover summary proceeding, and granted tenant's cross motion for a protective order, and (2) an order (same court and Judge), dated May 13, 2011, which, upon reargument, adhered to its original determination.

Per Curiam.

Order (John H. Stanley, J.), dated February 16, 2011, modified by denying tenant's cross motion, granting landlord's motion for additional discovery to the extent specified, and remanding the matter for further proceedings consistent with this decision; as modified, order affirmed, with $10 costs to petitioner-landlord. Appeal from order (same court and Judge), dated May 13, 2011, dismissed, without costs, as academic.

In defense of the underlying nonprimary residence holdover proceeding, tenant alleged that she has been "temporar[ily] absen[t]" from the subject Manhattan apartment to provide care for her elderly, infirm father in his Brooklyn home. Considering the presumption in favor of discovery in nonprimary residence proceedings (see Cox v J.D. Realty Assoc., 217 AD2d 179, 183-184 [1995]), and in view of tenant's vague and incomplete answers to deposition questions concerning the nature of her father's vaguely described "progressive illness" or his medication regimen, ample need was shown for landlord to conduct additional discovery of nonparty witnesses (see generally 542 E. 14th St. LLC v Lee, 66 AD3d 18, 23 [2009]), viz., tenant's father and his home health aide, who clearly possess particular knowledge of the facts giving rise to the "medical care" defense raised herein by tenant. No prejudice will befall tenant since it is landlord's own case which will be delayed, if at all, by the additional disclosure (see Hartsdale Realty Co. v Santos, 170 AD2d 260 [1991]). While landlord demonstrated entitlement to depose [*2]the aide, we limit discovery relating to the father to written interrogatories so as to accommodate his health concerns.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 06, 2011