ALH Props. Eleven LLC v Vejarano

[*1] ALH Props. Eleven LLC v Vejarano 2013 NY Slip Op 50052(U) Decided on January 16, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 16, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ
570534/11.

ALH Properties Eleven LLC, Petitioner-Landlord-Appellant,

against

Maria Vejarano, Respondent-Tenant, Victor Vejarano, Respondent-Undertenant-Respondent, -and- "John Doe" and/or "Jane Doe," Respondents-Undertenants.

Petitioner-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 (Michelle D. Schreiber, J.), dated March 4, 2011, which limited its document production request and denied its application for prepetition rent arrears in a holdover summary proceeding.
Per Curiam.
Order (Michelle D. Schreiber, J.), dated March 4, 2011, modified to extend discovery to the period commencing February 1, 2001, and limit the production of item 3 to redacted prison intake records; as modified, order affirmed, without costs.

There is no dispute that petitioner-landlord is entitled to discovery in connection with the occupancy issues raised by respondent Victor Vejarano's succession claim. With respect to the relevant period of inquiry, we believe discovery should extend back to February 1, 2001, a commencement date which will enable petitioner to effectively ascertain whether respondent primarily resided in the subject rent controlled apartment with the record tenant (respondent's mother) not only for the two-year period prior to the tenant's permanent vacatur in or about July 2004, but also at the beginning of respondent's incarceration in February 2002, the latter of critical importance in assessing the bona fides of respondent's succession defense (see generally 315 E. 72nd St. Owners, Inc. v Siegel, 22 Misc 3d 10 [2008]). We agree with the motion court that item 3 of petitioner's document demand was overbroad, and have limited it accordingly.

An award of prepetition rent arrears in petitioner's favor is not authorized in the context of this holdover summary proceeding, whether by way of interim relief or otherwise (see RPAPL [*2]§ 745[2][a]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: January 16, 2013