Alta Apts. LLC v Wainwright

[*1] Alta Apts. LLC v Wainwright 2004 NY Slip Op 50797(U) Decided on July 19, 2004 Civil Court Of The City Of New York, New York County 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 19, 2004
Civil Court of the City of New York, New York County

ALTA APARTMENTS LLC, Petitioner-Landlord,

against

STUYVESANT WAINWRIGHT, III, and MARCELLA WAINWRIGHT, Respondents-Tenants, "JOHN DOE" and "JANE DOE," Respondents-Undertenants.



105382/03



Belkin Wenig & Goldman, LLP (Jeffrey L. Goldman and Rachel A. Rabinowitz of counsel), New York City, for petitioner. Cornicello & Tendler, LLP (David Tendler of counsel), New York City, for respondents.

Gerald Lebovits, J.

If your left ear is itchy, you scratch it with your left hand. You don't try to scratch it with your neighbor's right foot.

Petitioner moves for leave to reargue and/or renew this court's June 8, 2004, decision and order, which granted petitioner's motion to restore this nonprimary-residence holdover proceeding for trial but which denied petitioner's motion to compel respondent Marcella Wainwright to disclose her social security and Citibank account numbers. Respondents, Stuyvesant Wainwright, III, and his spouse, Ms. Wainwright, oppose the motion. They argue that petitioner should have proceeded by order to show cause, that petitioner improperly annexed new evidence to its latest motion, that petitioner now makes arguments not previously made and rehashes old ones, and that petitioner never demonstrated ample need for the information it seeks. Petitioner's motion for leave to seek reargument is granted. On reargument, the court adheres to its original determination.

Petitioner began this case in December 2003. Respondents appeared by counsel and answered in late December 2003. Petitioner served respondents with a deposition notice and [*2]document demand dated December 17, 2003. Respondents consented to discovery and gave petitioner over 400 pages of requested documents. Ms. Wainwright attended a three-hour deposition on February 11, 2004. The proceeding was marked off calendar in March 2004 pending completion of discovery. Respondents later gave petitioner additional documents, for a total of 482 pages.

All agree that Mr. Wainwright does not maintain the subject premises as his primary residence. He lives in East Hampton. The issue in this proceeding is whether the subject premises is Ms. Wainwright's primary residence.

By notice of motion returnable June 2, 2004, petitioner sought to restore the proceeding for trial and to compel Ms. Wainwright to disclose her social security and bank account numbers so that petitioner can issue trial subpoenas duces tecum to non-parties New York State Department of Taxation and Finance and Citibank. (See Petitioner's Notice of Motion dated May 19, 2004, at 2; Rabinowitz Affirmation of May 19, 2004, at 2, ¶ 2 [b].) On June 8, 2004, this court denied petitioner's motion to compel. Petitioner now seeks leave to reargue and/or renew and asks for the identical relief: to compel Ms. Wainwright to disclose her social security and bank account numbers so that petitioner can issue trial subpoenas duces tecum to non-parties New York State Department of Taxation and Finance and Citibank. (See Petitioner's Notice of Motion dated June 14, 2004, at 1, at [b]; 2 Goldman Affirmation of June 14, 2004, at 1, ¶ 2 [b].)

Numerous cases hold that proper practice on a motion for leave to reargue or renew is that a party submit an order to show cause to the judge who decided the original motion. (See e.g. Application of Central States Paper & Bag Co., Inc., 132 NYS2d 69, 72 [Sup Ct, NY County 1954], aff'd mem 284 AD 841 [1st Dept 1954]; Rubin v Dondysh, 147 Misc 2d 221, 222 [Civ Ct, Queens County 1990].) A motion to reargue or renew brought by order to show cause permits the court in the first instance to determine whether there is a legitimate basis for the court to expend its and the opposing party's resources to consider the case again. (Central States, 132 NYS2d at 72.) Notwithstanding the case law requiring parties seeking reargument or renewal to proceed by order to show cause, CPLR 2221 (a) provides that a motion for leave to renew or reargue a motion "shall be made, on notice, to the judge who signed the order." (CPLR 2221 [a]; accord McKinney's Forms, CPLR, § 5:53.) The CPLR's mandatory language conflicts with the case law cited and directs that a party seeking reargument or renewal proceed by motion on notice, not by order to show cause. Accordingly, the court declines to deny petitioner's motion on the ground that it did not move by order to show cause. In any event, had petitioner submitted an order to show cause, this court would have signed it.

Nevertheless, petitioner's motion for leave to secure Ms. Wainwright's social security and bank account numbers is denied once again.

Petitioner annexed Ms. Wainwright's deposition transcript now, for the first time, and without justification for its non-production earlier. Petitioner's submission of the deposition transcript offers no basis to grant reargument or renewal. [*3]

A motion to reargue may not include "any matters of fact not offered on the prior motion." (CPLR 2221 [d] [2].) A motion to renew may include new facts not previously offered (CPLR 2221 [e] [2]) only if the moving party offers "reasonable justification for the failure to present such facts on the prior motion." (CPLR 2221 [e] [3].)

Petitioner argues that the transcript demonstrates its ample need to compel Ms. Wainwright to disclose her social security and bank account numbers. Petitioner states that she admitted voting twice in East Hampton, that she once had a driver's license with an East Hampton address, and that she has spent considerable periods of time with her husband in East Hampton. These newly alleged facts were available to petitioner at the time of its original motion. They may not be considered on a motion to reargue or renew. Furthermore, what the deposition transcript really shows is petitioner's good faith to bring this proceeding, not whether petitioner needs more proof from Ms. Wainwright's social security and bank account numbers. The transcript has no bearing on whether this court properly denied petitioner's motion to compel her to disclose her social security and bank account numbers.

A party moving for leave to reargue or renew must separately identify and support each item of relief sought. (CPLR 2221 [f].) A court will then decide each part of the motion as if it were separately made. (Id.) Despite petitioner's denomination of its motion as one for reargument and/or renewal, petitioner's affirmation suggests that petitioner seeks leave to reargue, rather than to renew, its earlier motion. Petitioner maintains that this court ignored appellate authority and misapprehended the law and factual underpinnings of West 16th Realty Co. v Ali (176 Misc 2d 978, 979 [Civ Ct, NY County 1998]) when it denied petitioner's motion to compel. The court treats petitioner's motion as one for reargument.

A party seeking reargument must show that the court overlooked or misapprehended fact or law in determining a prior motion. (CPLR 2221 [d] [2]; William P. Paul Equip. Corp. v Kassis, 182 AD2d 22, 27 [1st Dept], lv denied & appeal dismissed mem 80 NY2d 1005 [1992]; Foley v Roche, 68 AD2d 558, 567 [1st Dept 1979].) The court disagrees with petitioner's assertion that this court ignored or misapprehended the law in denying its motion to compel Ms. Wainwright to disclose her social security and bank account numbers.

Petitioner initially moved for an order compelling Ms. Wainwright to disclose her social security and bank account numbers so that it could subpoena additional records she did not consent to disclose. Petitioner wants her social security and bank account numbers because it seeks (1) "un-redacted Tax Returns for the portion of the New York State Tax Return which lists whether New York City Resident tax was paid and/or whether Non-Resident Income Tax was paid" (Rabinowitz Affirmation of May 19, 2004, at 3, ¶ 12) and (2) bank statements from 1999 and 2000 (id. at 4, ¶ 13). Petitioner never moved for disclosure of tax records or bank statements during the discovery phase of this proceeding. Respondents voluntarily turned over most of the records petitioner sought in its document demand, including tax and bank records. [*4]

Respondents declined to disclose bank statements dating back from 1999 and 2000, over three years before petitioner issued the nonrenewal notice. Respondents objected to petitioner's request in their response to petitioner's document demand. (See Respondents' Response to Petitioner's Document Demand at ¶ 3 in Respondents' Affirmation in Opposition at Exhibit A.) Ms. Wainwright repeated her objection to disclose bank statements from 1999 and 2000 at her deposition. (Respondents' Affirmation in Opposition at Exhibit B.) Petitioner never sought a court ruling on Ms. Wainwright's objections to turning over bank records from 1999 and 2000. Petitioner sought, instead, to restore the proceeding to the trial calendar and to compel her to disclose her bank account numbers so that it could issue subpoenas. This court examined petitioner's request and decided that petitioner was unable to demonstrate ample need.

Petitioner moved to compel Ms. Wainwright to disclose her social security number so that it could issue subpoenas to obtain respondent's unredacted tax forms. Petitioner alleged that she did not provide the 1999 City of New York Nonresident Earnings Tax Return Form NYC-203 and Form IT-201-ATT for the years 1999 to 2002. Petitioner's motion misinterprets the intricacies of tax law. A taxpayer need file both NYC-203 (the nonresident-New York City-earnings return that petitioner incorrectly calls a "Resident Income Tax Return" and which in 2000 was done away with) and IT-201 (which Ms. Wainwright turned over) only if the taxpayer had earnings in New York City for the first half of 1999 and was a resident of New York State but not of New York City. Form IT-201-ATT along with IT-360.1 (the New York City status change, which Ms. Wainwright did not turn over but about which petitioner does not complain) were required if a taxpayer was a part-year New York City resident. (See line 33, IT-201-ATT.) Nonetheless, petitioner argued that it is entitled to inspect unredacted tax records to see whether respondents paid New York City or non-resident taxes.

In its reply papers to its original motion to compel, petitioner annexed respondents' redacted tax records and, altering its position, contended that its motion was "to compel Respondents to provide complete tax returns and banking records." (Petitioner's Motion to Reargue at Exhibit 2 from Rabinowitz Reply Affirmation dated June 1, 2004, at 1, ¶ 2.) Petitioner's reply contained new material—respondents' redacted tax records—and sought a different, albeit narrower, form of relief from what it had demanded in its original motion, which sought to restore the proceeding to the court's trial calendar and to compel Ms. Wainwright to disclose her social security and bank account numbers. Then, again switching gears in reply, petitioner insisted that "Respondent reveal the amount of tax paid to the City of New York." (Rabinowitz Reply Affirmation dated June 1, 2004, at 3, ¶ 9.) (On reargument, petitioner returns to its original motion to obtain social security and bank account numbers.)

And now, for the first time in its motion to reargue, petitioner explains that it seeks respondents' unredacted tax returns with all schedules from 1999-2002, not because it needs to know how much respondents paid in New York City taxes, as it originally alleged, but because one of the attached tax forms requires respondents' tax preparers to state how much time respondents spent as New York City residents. Petitioner maintains, accurately, that the 1999 City of New York Nonresident Earnings Tax Form NYC-203 (which, again, petitioner repeatedly [*5]but inaccurately calls a "Resident Income Tax Return") "requires tax preparers to indicate how much time [respondent] spent as a resident and non-resident." (Petitioner's Motion to Reargue at ¶ 11.)

The amount of time Ms. Wainwright spends in New York City is critical to the issue of her primary-residence. If a tax form she filed indicates how much time she spent in New York City, petitioner on a proper motion is entitled to see it, as redacted. This court is familiar with the reasoning of the host of appellate cases petitioner cited in its reply affirmation and in this motion that hold that tax records and bank statements are relevant factors in determining primary residence. But petitioner moved for disclosure of Ms. Wainwright's social security and bank account numbers in its original motion and the amount of tax paid in reply and did not show ample need for this type of disclosure from 1999.

To show ample need in its original motion to compel, petitioner cited not fact but two irrelevant cases. (See Rabinowitz Affirmation of May 19, 2004, at 4, ¶ 15.) Chassin v Helaire Nursing Agency, Inc. (211 AD2d 581, 581 [1st Dept 1995, mem]), deals with the Commissioner of Health's statutory authority to issue a subpoena. Matter of Estate of Sandin (134 Misc 2d 581 [Surr Ct, Nassau County 1987]) concerns a bank's standing to contest a subpoena issued to trace accounts funds an executor might have stolen.

Had the court granted petitioner's motion to compel Ms. Wainwright to disclose her social security and bank account numbers, petitioner would have been able to subpoena her unredacted tax and bank records and obtain unimpeded access to all of respondents' private information, not just information relevant to primary residence. Among many other things, that would have contradicted petitioner's document demand at Schedule "A" ¶¶ 4 6 (concerning federal, state, and city tax documents), which allowed respondents to redact financial information "as to dollar figures." If petitioner had merely sought additional tax records and bank statements, it should have moved specifically for respondents to disclose these items rather than to compel Ms. Wainwright to disclose her social security and bank account numbers. If petitioner had timely satisfied the "ample need" standard to obtain limited, relevant disclosure, the court would have entertained favorably petitioner's request for the additional documents. In essence, petitioner could have scratched its left ear if it had simply raised its left hand to do so. But petitioner never showed ample need for additional tax and bank records going back to 1999, well before the lease renewal of November 30, 2001, let alone ample need to learn the precise amounts of taxes respondents paid.

A landlord is presumptively entitled to disclosure of tax records and bank records in a nonprimary-residence proceeding. However, respondents voluntarily disclosed 482 pages of discovery responsive to petitioner's initial document demand. Ms. Wainwright also attended a three-hour deposition. Petitioner was required to show why it needed additional disclosure, particularly when in the same motion petitioner sought to restore the proceeding to the court's calendar for trial certain. Thus, even if petitioner had properly moved to obtain bank and tax [*6]records, rather than social security and bank account numbers, petitioner would have been required to show ample need on the eve of trial.

In moving to compel Ms. Wainwright to disclose her social security and bank account numbers, petitioner seeks information it may not obtain lightly. In Cambridge Development, LLC v McCarthy (2003 NY Slip Op [U], *26 [Hous Part, Civ Ct, NY County]), for example, this court, in response to a timely discovery motion in a nonprimary-residence proceeding, allowed the tenant to redact his social security and bank account numbers.

Social security numbers are almost never discoverable. (E.g. Weingrad v City of New York, NYLJ, Jan. 7, 2004, at 18, col 1 [Sup Ct, NY County].) Noteworthy is Bibeau v Cantigue Figure Skating Club, Inc. (294 AD2d 525, 525 [2d Dept 2002, mem]), in which the Second Department cited a series of cases in reversing Supreme Court's directive that the plaintiff produce unredacted copies of income tax returns containing her social security number.

Petitioner states, belatedly, that what it needs is respondents' unredacted New York City returns to determine how much time she spent at the subject premises. This request contradicts petitioner's representation that it really wants "the amount of tax paid." But even if petitioner had sought merely Ms. Wainwright's unredacted tax returns, and not her social security number in order her unredacted tax returns, the court would still have denied its request at this stage.

First, petitioner did not spell out factually "special, unusual or extraordinary circumstances" to seek unredacted tax returns after it announced its trial readiness. (See Cottrell v Spina, 214 AD2d 946, 947 [4th Dept 1995, mem] [finding that Supreme Court abused its discretion by ordering disclosure of unredacted returns after statement of readiness filed].)

Second, petitioner did not in its motion, in its reply, or in its motion for leave to reargue and/or renew submit an affidavit from someone with personal knowledge. Petitioner submitted only attorney affirmations. Tax records may not be obtained without a clear showing of necessity from someone with personal knowledge. An attorney's affirmation to get tax returns is "clearly inadequate." (Zimmer v Cathedral Sch. of St. Mary & St. Paul, 204 AD2d 538, 539 [2d Dept 1994, mem].)

Third, even if petitioner had submitted an affidavit from someone with personal knowledge, it did not "make a strong showing of necessity" to secure "confidential and private" tax returns. (Gordon v Grossman, 183 AD2d 669, 670 [1st Dept 1992, mem].) Petitioner might gain an advantage learning about respondents' earned income and New York City resident-tax paid. But gaining an advantage is not the test. Petitioner has not shown how unredacted returns from 1999 is strongly necessary, given that the relevant time period to determine primary residence in this proceeding begins from November 30, 2001, the time of the last lease renewal.

Fourth, petitioner has not shown "that the information in the returns is unavailable from other sources." (Gordon, 183 AD2d at 670.) To the contrary, petitioner announced at oral [*7]argument (or to the court attorney pre-argument; the court does not recall) that if this court denies its motion to reargue, it will obtain that information from another source: it will subpoena for trial respondents' tax preparer, who prepared the returns petitioner seeks. (This is not to suggest that the trial court will allow that testimony but merely that petitioner is confident that the testimony is admissible and therefore that petitioner believes it can obtain the information elseways.) And petitioner has not explained why, having asked Ms. Wainwright during her deposition whether she paid New York City taxes (Ms. Wainwright testified that she did not know), it cannot glean further information through "trial testimony" (Briand Paterneau Inc. v Dean Witter Reynolds Inc., 267 AD2d 576, 577 [3d Dept 1999] [noting that depositions and trials are available sources from which to obtain tax information]); why it cannot ask for an adverse-inference charge if respondent does not come forward with proof; or why petitioner cannot call an expert to prove what it can from the returns respondents provided.

And fifth, petitioner asked in its document demand only for redacted financial information. Petitioner has gone back on its demand by asking for "the amount of tax paid." The court has downloaded Forms IT-201-ATT for 1999-2002. Absent from the forms for all four years is any box giving the taxpayers' address. The forms demand only precise dollar amounts. If respondents turn over Forms IT-201-ATT for 1999-2002 (assuming that respondents filed one in 1999; they might not have, as explained above), they can comply with petitioner's document demand by redacting everything anyway.

The entire issue over bank account numbers is a nonissue. Petitioner has enough identifying information to subpoena Citibank without forcing Ms. Wainwright to disclose her account numbers. Regardless, petitioner's demand for bank account information improper. That is true even if petitioner had timely asked for redacted bank statements instead of circuitously asking for account numbers—using its neighbor's right foot to scratch its left ear, stated differently. Petitioner claims it needs the account numbers to subpoena ATM withdrawal slips, learn where statements were mailed in 1999 and 2000, and find out who had signatory rights to banking and credit cards. Petitioner has not articulated why signatory powers are relevant in this nonprimary-residence proceeding (the court accepts that they might be relevant in some nonprimary-residence proceedings), why the information is needed in a case in which the relevant period begins in November 2001, or how (without requiring a judge to sort through every ATM receipt in camera to cull good information from bad) subpoenaing these records for trial from a nonparty bank will not violate its demand for redacted financial information only.

In declining to compel Ms. Wainwright to turn over her social security and bank account numbers, this court relied in part on West 16th Realty Co. v Ali (176 Misc 2d 978, 979 [Civ Ct, NY County 1998]). Petitioner spends nine paragraphs in its reargument motion urging that this case is inapposite and that the court's references to it in two sentences at page two are wrong.

The landlord in Ali, like petitioner here, sought to subpoena "statements of bank accounts of respondent and his wife" in a nonprimary-residence holdover proceeding. (See id.) Although bank account information is relevant in a nonprimary analysis, the Ali court noted that the [*8]landlord, like petitioner here, had failed to seek these statements in the pretrial phase of the proceeding. (See id.) The Ali court also explained that the landlord, like petitioner here, made no attempt to limit its request to take into account the tenant's legitimate privacy concerns. (See id. at 980.) Similarly, this court found that petitioner's motion to compel Ms. Wainwright to disclose her social security and bank account numbers was overly broad and unnecessary in this allegedly trial-ready proceeding.

Ali further stands for the well-known proposition that subpoenas may not be used to substitute for pretrial disclosure. (See id. at 979, citing Matter of Terry D., 81 NY2d 1042, 1044 [1993].) Petitioner repeatedly states that it will use Ms. Wainwright's social security and bank account numbers to subpoena tax authorities and banks under CPLR 2301. That it may not do.

On another point, both sides inquire about three sentences at page two of the court's decision and order of June 8, 2004: "The Wainwrights list their address as East Hampton on their joint tax returns (See Exhibit B to Petitioner's Reply.) The court assumes that the Wainwrights did not pay New York City taxes and thus that the return will not assist petitioner. In light of that, petitioner can make all the appropriate arguments at trial and ask the trial judge . . . to draw any suggested inferences from the information available in the tax returns provided."

Petitioner asks whether this is law of the case that would bind a trial judge in instructing a jury. (This case will be tried by jury, the parties told the court at oral argument on this motion to renew and/or reargue.) Using quotation marks around the word "assumption," Petitioner also contends now that "the Court is in error in its 'assumption,'" even though petitioner had urged this precise assumption in reply—that "it appears that Respondents paid no resident taxes to the City of New York." (Rabinowitz Affirmation of May 19, 2004, at 3, ¶ 10.) Respondents simply told the court that its understanding of tax law is wrong.

Because both sides ask sincere questions, the court spent hours studying an area it had once hoped it would never have to learn much about: tax law. Both sides and the court agree that one spouse may live outside New York City and thus not pay New York City resident taxes and receive New York City credits while another spouse may live in New York City (for all or part of a year) and pay New York City resident taxes and receive New York City credits. But that would be unusual in 1999 if, as here, both spouses file jointly, if both list as their "home address" an address outside New York City but within New York State, and if one spouse (here Ms Wainwright) files an NYC-203 Nonresident Earnings Tax Return (which was required if a New York State taxpayer had wages or net self-employment income before July 1, 1999) without filing an IT-360.1 (change of New York City resident status). All this to say that the court stands by its finding that "the return will not assist petitioner." [*9]

Petitioner's demands make little sense under the tax law. Ms. Wainwright would not have been required to file an NYC-203 if she was a full-year New York City resident in 1999, regardless of her husband's residency. On the other hand, Ms. Wainwright did not provide the supplemental schedules and documentation showing that she had income-tax liability to New York City as either a full- or part-year resident from 1999-2002, the years in question. Ms. Wainwright's not turning over a separate (not joint) self-created schedule or computation (as redacted) showing her New York City residency tax calculated based on her New York State taxable income (see e.g. instruction for IT-201 ("Other New York City Taxes," line 46 in 1999)) suggests that she did not have any full-year New York City resident income-tax liability for 1999-2002. The court also assumes that she was not a part-year New York City resident for years 1999-2002 for liability purposes. If she were a part-year New York City resident in 1999-2002, she would been required to file forms IT-360.1 and IT-201-ATT, neither of which Ms. Wainwright turned over for 1999-2002.

On the 1999 and 2000 IT-201 forms, section "E," Ms. Wainwright checked off the box applicable to full- and part-year New York City residents. But so in 1999 did Mr. Wainwright, who was not a New York City resident. Ms. Wainwright then redacted that box (section "E") in 2002, which asked how many months she lived in New York City as a full- or part-year resident (although for some reason petitioner does not complain about that). And although she stated in section "D" of the 2001 IT-201 that she is a 12-month New York City resident, that section is not dispositive of the calculation of liability as a New York City resident.

The above answers the litigants' questions, but the court declines to explain further what it means; else one side would have an advantage. The court merely amends its prior decision to make clear the dictum in the sentence in controversy: "From the returns respondent turned over, the court assumes that the Wainwrights did not have the liability to pay New York City taxes as New York City residents . . . ."

That said, this court never intended to bind a trial judge on an evidentiary issue, and by law a resolution judge may not bind in limine a trial judge on an evidentiary issue in any event. All the court wrote was that petitioner may make all appropriate arguments to the trial judge from the tax returns respondents provided. Petitioner may even ask for an adverse-inference charge under some circumstances. (See e.g. 23 Jones St. Assocs. v Keebler-Beretta, 186 Misc 2d 799, 800-801 [App Term, 1st Dept 2000, per curiam].) Respondents are free to oppose that request. The trial judge is free to give it or not. An appellate court, too, is free to agree or disagree with what the trial judge instructs the jury.

In moving to restore for trial, after discovery was concluded, petitioner also moved for respondent Marcella Wainwright's (1) social security number so that can subpoena for trial her unredacted tax returns (and who knows what else) that (if they exist, and they might not) will disclose financial information not called for in its document demand and (2) bank account numbers so that it can subpoena for trial her unredacted bank records (and who knows what else) that will disclose financial information not called for in its document demand. Petitioner through [*10]its attorneys' affirmations did not show ample need for these records, which go back to 1999, before the lease renewal of November 2001. And to obtain these records from nonparties, petitioner in every set of papers shifts theories, adds evidence, and changes its mind about what it really seeks. In other words, petitioner tried to scratch its left ear with its neighbor's right foot. Given all that, petitioner's motion for leave to reargue is granted, but the court adheres to its initial determination.

This proceeding is adjourned to July 29, 2004, for transfer to Trial Term 1.

This opinion is the court's decision and order.

Dated: July 19, 2004J.H.C.