Katz v Bellmore Kickboxing Academy, Inc.

[*1] Katz v Bellmore Kickboxing Academy, Inc. 2007 NY Slip Op 51340(U) [16 Misc 3d 1108(A)] Decided on July 10, 2007 District Court Of Nassau County, First District Fairgrieve, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 10, 2007
District Court of Nassau County, First District

Amos Katz, Petitioner(s)

against

Bellmore Kickboxing Academy, Inc., Respondent(s)



SP 005655/06



Jay A. Marshall, Esq., Attorney for Petitioner, 585 Stewart Avenue, Suite 790, Garden City, New York 11530, 516-228-8530; Pollack, Cooperman & Fisher, P.C., Attorneys for Respondent, 5372 Merrick Road, Suite 200, Massapequa, New York 11758, 516-228-0033.

Scott Fairgrieve, J.

Petitioner has brought a motion pursuant to CPLR 408, requesting leave of the Court for discovery in a summary proceeding. Respondent has opposed this motion, claiming that in order for the petitioner's motion to be granted, the petitioner must demonstrate ample need.

The original petition was brought against the Respondent in October 2006, where the Petitioner requested arrears in the amount of $3,197.68. The parties were able to stipulate to an agreement where the respondent received rent abatement and the petitioner agreed to make all repairs to the roof and to attempt to aid in the amelioration of a mold problem. Until the problem was fixed, the respondent would receive the 20% rent abatement.

In April 2007, the petitioner moved to restore the proceeding to the trial calendar, as the petitioner averred that the repairs had been made, but the respondent was in breach of the stipulation because he was continuing to take the rent abatement.

The Respondent opposed the motion, claiming that the petitioner failed to make the repairs as were stipulated. In the opposition papers, the respondent provided photographic evidence as to the need for further repairs to the roof.

On May 16, 2007, the court granted the motion to restore the proceeding for trial. The petitioner claims that on May 25, 2007, the respondent was forwarded a Notice for Discovery and Inspection by fax and by mail to the respondent. The petitioner claims that he was aware of the requirement under CPLR 408 requiring leave of the Court for disclosure in a special proceeding. The petitioner claims that he made these requests, despite the procedural deficiencies, to avoid making motions within the Court. The Petitioner claims that the photographs provided by the Respondent in the Answer were of poor quality, and thus they wanted to obtain photographs of better quality, as well as the video depicting leaks on the premises that was referenced in the respondent's opposition papers. [*2]

The Respondent has opposed this motion, claiming that the petitioner must be able to prove that the roof has been repaired, and if he can not, then the case should not be restored to the trial calendar.

CPLR 408 states that "[l]eave of court shall be required for disclosure except for a notice under section 3123."

CPLR 3123 provides that:

"[a]t any time after service of the answer or after the expiration of twenty days from service of the summons a party may serve upon any other party a written request for admission by the latter of the genuineness of any papers or documents, or the correctness or fairness of representation of any photographs, described in and served with the request, or of the truth of any matters of fact set reasonably believes there can be no substantial dispute at the trial."

Although disclosure is not standard during summary proceedings, there are situations when there may be a need for such disclosure to assist in the promotion of justice. See, Smilow v. Ulrich, 11 Misc 3d 179 (NY Civil Court, 2005). In order to justify disclosure in a summary proceeding, the movant must demonstrate "ample need." See, Smilow v. Ulrich, 11 Misc 3d 179 (NY Civil Court, 2005). Criteria that can be used to make this determination include (1) whether the petitioner has asserted facts to establish a cause of action; (2) whether a need to determine information directly related to the cause of action has been demonstrated; (3) whether the requested disclosure is carefully tailored so as to clarify the disputed facts; (4) whether any prejudice will result and (5) whether the court can fashion or condition its order to diminish or alleviate any resulting prejudice. See, Matter of Lonray, Inc. v. Newhouse, 229 AD2d 440 (App. Div, 2nd Dep't, 1996); New York University v. Farkas, 121 Misc 2d 643 (NY City Civ. Ct. 1983).

The petitioner is requesting photographs and video in the respondent's possession regarding the claims that the respondent is making that the roof has not been fixed. If the respondent can prove that the roof has not been fixed, the continuous rent abatement will be justifiable. The pictures the Petitioner is requesting have already been offered by the respondent; the petitioner is simply asking for further clarification of the disputed facts through clearer photographs and a video. There is no reason that the respondent will suffer any prejudice because of this disclosure, as they have already offered the photographs, and the video has been discussed prior to the request.

Respondent claims that allowing for the photographs and video to be disclosed to the petitioner would violate attorney client privilege; however, this claims are unsubstantiated. The Respondent has already provided the pictures for the court, and has discussed the video he has within the settlement proceedings as leverage. Thus, even if there was attorney client privilege within these documents, the respondent has waived any of those rights. Further, the Respondent claims that providing duplicative originals of the video and photographs to the Petitioner would be costly and time consuming. While producing new video and photographs will cost money, the burden of paying for the production of this evidence will fall on the petitioner. this does not seem overly burdensome, [*3]as the Respondent was the party to provide references to these photographs and video

Thus, in order to provide for a just proceeding, the Petitioner's motion under CPLR 408 directing the Respondent to comply with the Petitioner's Notice for Discovery and Inspection is granted. The Cost of production of these materials will be placed on the Petitioner, and the materials must be produced by July 18, 2007. A hearing for trial will be held on July 25, 2007 at 2pm.

So Ordered:

DISTRICT COURT JUDGE

Dated:July, 2007

CC:Jay A. Marshall, Esq.

Pollack, Cooperman & Fisher, P.C.

SF/mp