117 Ltd. Partnership v Wagenberg

[*1] 117 Ltd. Partnership v Wagenberg 2013 NY Slip Op 50356(U) Decided on March 12, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 12, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Torres, J.P., Schoenfeld, Shulman, JJ
570002/12.

117 Limited Partnership, Petitioner-Landlord-Appellant,

against

Mitchell Wagenberg, Respondent-Tenant-Respondent, -and- George Banfitch, "JohnDoe" and "Jane Doe", Respondents-Occupants.

Petitioner-landlord, as limited by its brief, appeals from those portions of an order of the Civil Court of the City of New York, New York County (Timmie E. Elsner, J.), dated November 16, 2011, which struck specified items of its notice for discovery and inspection and limited the scope of the deposition of respondent-occupant George Banfitch in a holdover summary proceeding.

Per Curiam.

Order (Timmie E. Elsner, J.), dated November 16, 2011, insofar as appealed from, modified to grant petitioner-landlord's motion for leave to conduct discovery in its entirety; as modified, order affirmed, with $10 costs to petitioner-landlord.

Petitioner-landlord's motion for leave to conduct discovery, unopposed by either the record tenant or the alleged occupant (Banfitch) of the subject rent stabilized apartment, should have been granted in its entirety. In pursuing its nonprimary residence claim against the tenant, petitioner demonstrated "ample need" for discovery relating to Banfitch (see Cox J.D. Realty Assoc., 217 AD2d 179, 183-184 [1995]), since it is clear that Banfitch possesses particular knowledge which could shed light on the tenant's use (or lack thereof) of the apartment, and in view of the evasive response in tenant's answer denying "knowledge or information" of Banfitch's alleged occupancy. On this record, and particularly in view of the respondents' defaulting status, we do not view petitioner's discovery demand as overbroad.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 12, 2013