Stern v Levine

[*1] Stern v Levine 2005 NY Slip Op 51931(U) [10 Misc 3d 129(A)] Decided on November 22, 2005 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 22, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., RIOS and BELEN, JJ.
2004-1662 K C NO. 2004-1662 K C

Neilan Stern, Respondent,

against

Laurence Levine, Appellant.

Appeal, as limited by tenant's brief, from (1) so much of an order of the Civil Court of the City of New York, Kings County (Thomas Fitzpatrick, J.), dated June 3, 2004, as denied that branch of tenant's cross motion seeking to direct landlord to authorize the release of landlord's Social Security Disability records and granted landlord's motion to restore the case to the trial calendar, (2) an order of said court, dated November 17, 2004, which, upon in effect granting tenant's motion for reargument of the order dated June 3, 2004, adhered to the prior decision, and (3) an order of said court (Oymin Chin, J.), dated November 18, 2004, granting an unopposed motion by landlord to restore the case to the trial calendar.

Appeal from orders dated June 3, 2004 and November 18, 2004 dismissed.

Order dated November 17, 2004 modified by providing that, upon reargument, tenant's motion is granted to the extent of directing landlord to provide, within 25 days of the date of the order hereon, copies of the medical exhibits introduced in support of the Social Security Administration's determination of disability dated August 29, 1997 and of any and all biennial updates submitted by landlord to the Social Security Administration, for in camera review by the court and a redaction of all matters not bearing on landlord's medical condition; as so modified, affirmed without costs.

The appeal from the order dated November 18, 2004 is dismissed because said order is deemed entered upon default and no appeal lies therefrom (see Oriental Blvd. v Rovner, 5 Misc 3d 134[A], 2004 NY Slip Op 51480[U] [App Term, 2d & 11th Jud Dists]). The appeal from the order dated June 3, 2004 is dismissed because said order was superseded by the order dated [*2]November 17, 2004.

In this proceeding by landlord to recover a rent-stabilized apartment for his use and that of his wife, the record shows that the apartment is on the third floor of a four-floor walkup. In support of his discovery motions, tenant showed that landlord is the recipient of Social Security Disability Insurance (SSI) benefits as the result of a severe asthma condition and that, at a hearing before an Administrative Law Judge of the Social Security Administration (SSA), landlord testified that he was unable to climb any amount of stairs without a problem. The issue on this appeal is whether tenant is entitled to the medical records submitted by landlord to the SSA as exhibits in support of his SSI claim. In our view, these medical records pertain to landlord's ability to climb stairs and are material and necessary to tenant's defense that landlord, who has a home in Long Beach, New York, does not in good faith intend to reside in the apartment. Accordingly, landlord is directed to produce the medical exhibits introduced at the SSA hearing as well as any biennial updates submitted by landlord to the SSA, for redaction by the court below of any non-medical material.

Pesce, P.J. and Belen, J., concur.

Rios, J., concurs in part and dissents in a separate memorandum. [*3]
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., RIOS and BELEN, JJ.
NEILAN STERN,

Respondent,

-against-
LAURENCE LEVINE,

Appellant.

Rios, J., concurs in part and dissents in part and votes to dismiss the appeals from the orders dated June 3, 2004 and November 18, 2004 and to affirm the order dated November 17, 2004 in the following memorandum.

While I concur in the dismissal of the appeals from the orders dated June 3, 2004 and November 18, 2004 for the reasons stated in the majority opinion, I would affirm the order dated November 17, 2005. It is well settled that the trial court has broad discretion to decide whether information sought is "material and necessary" within the meaning of CPLR 3101 (see Allen v Cromwell-Collier Pub. Co., 21 NY2d 403, 406 [1968]; Vasile v Chisena, 272 AD2d 610 [2d Dept 2000]). This is particularly so in a summary proceeding where discovery is available only by leave of court (CPLR 408) and is generally considered "antithetical to the purposes" of the special proceeding (Cox v J.D. Realty Assoc., 217 AD2d 179, 184 [1995]; Quality and Ruskin Assoc. v London, 8 Misc 2d 102 [2005]). In the instant case, landlord was first subjected to an overly broad discovery demand, from which he successfully sought relief, then required to appear, with his wife, for an examination before trial. Thereafter, landlord voluntarily supplied tenant with many of the records sought by tenant. In these circumstances, the Civil Court did not abuse its discretion in denying tenant's application for still further discovery, which amounted to nothing more than a fishing expedition with respect to collateral matters. Accordingly, I would affirm the Civil Court's order dated November 17, 2004.
Decision Date: November 22, 2005