525 W. 175 St. LLC v Vincente

[*1] 525 W. 175 St. LLC v Vincente 2008 NY Slip Op 50631(U) [19 Misc 3d 1110(A)] Decided on March 17, 2008 Civil Court Of The City Of New York, New York County Marton, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 17, 2008
Civil Court of the City of New York, New York County

525 West 175 St. LLC as successor in interest to 525 Realty LLC, Petitioner,

against

Saturnina Vincente a/k/a Saturnina Vincente-Fabian et al., Respondents



67576/07



Petitioner's counsel

Heiberger & Associates, P.C.

205 Lexington Avenue -19th Flr.,

New York, New York 10016

(212) 532-0500

Respondents pro se

Saturnina Vincente

Gary F. Marton, J.

This is a holdover proceeding. The premises at issue is a rent-stabilized apartment. Petitioner alleges that the tenant of record violated a substantial obligation of her tenancy by subletting the premises without obtaining petitioner's consent and then failing to cure this violation after being served with a notice to cure. Respondent Vincente did not appear; respondent Tineo, who is not the tenant of record, appeared pro se and needed a Spanish interpreter.

Now petitioner moves for leave to take discovery and for an order requiring the payment of pendente lite rent/use and occupancy. As set out below, the motion is denied and this proceeding is dismissed.

In a summary proceeding, a motion for leave to take discovery is addressed to the [*2]court's discretion. CPLR § 408. Typically, courts have required a party seeking such relief to make a showing of "ample need," New York University v Farkas, 123 Misc 2d 643, 647 (Civ Ct, NY Co, 1983); the request for discovery should be "carefully tailored and * * * likely to clarify disputed facts," Farkas at 647. Here, though, petitioner seeks at item No.3 of its document demand "Unredacted Federal, State, and City Tax Returns," at # 8 "Brokerage statements," at #16 "Copies of any and all insurance policies" including health insurance, and at # 17 "Any and all written agreements with current and/or prior owner evidencing written consent to alter the subject premises." These demanded documents do not seem to bear on the issue of whether respondent sublet the premises, yet petitioner does not explain how they might. "The burden of serving a proper demand is upon counsel and not for the courts to correct a palpably bad one." Itzkoff v Allstate Ins. Co., 59 AD2d 854, 855 (1st Dep't, 1977); see also, Riverside NY LLC v Peralta, NYLJ, p. 17, col. 1, March 16, 2006 (Civ Ct, NY Co) (Finkelstein, J.). The court holds that petitioner's demand is not "carefully tailored," Farkas, supra, and is "palpably bad," Itzkoff, supra, and that the moving papers do not make the requisite showing of "ample need," Farkas, supra. The court denies petitioner's application for leave to take discovery.

Previously, by a decision and order dated November 7, 2007, the court denied a similar motion by petitioner for leave to take discovery. Therein, the court noted that the City of New York's Department of Housing Preservation and Development ("HPD") had inspected the premises on September 12, 2007 and found 12 violations 3 "A," 8 "B," and 1 "C" of the housing maintenance code. NYCCA § 110 provides that this court "shall be devoted to actions and proceeding involving the enforcement of state and local laws for the establishment and maintenance of housing standards * * *" In the decision and order, the court required petitioner to cure the violations. So far as appears, petitioner has not.

Petitioner, in addition to moving again for leave to take discovery, also moves for payment pendente lite at the rental rate for the value of the premises. However, the moving papers do not address the housing code violations. The rental rate is probative of the premises' value but not conclusively so, Beacway Operating Corp. v Concert Arts Society, 123 Misc 2d 452 (Sup Ct, NY Co, 1984). The record here includes the HPD report and the decision/order requiring petitioner to cure the violations; these are probative of a breach of the warranty of habitability. The court holds that the rental rate is not sufficiently probative of the premises' value for the court to make an award of the same where, as here, there is some evidence [*3]of a breach of the warranty of habitability. The court denies so much of petitioner's motion as seeks payment at the rental rate.

Ordinarily, this court would provide that this denial is without prejudice to renewal upon a showing that, for example, the violations had been cured or that petitioner had attempted to cure them but had been denied access to the premises. Here, however, such a provision would be pointless because the court now dismisses this proceeding.

In the predicate notice to cure dated March 8, 2007 petitioner alleged that the tenant of record "Upon information and belief, Saturnina Vincente a/k/a Saturnina Vicente-Fabian is currently in jail." At paragraph 4 of the affidavit of petitioner's agent William Stanley sworn to on November 14, 2007 and submitted by petitioner in support of the motion decided herewith, petitioner repeats the allegation that the tenant of record "is incarcerated." Yet the court file shows that petitioner served the predicate notices, petition, notice of petition, and the motion decided herewith, on the tenant of record not at the place of her incarceration but at the premises. Due process of law, however, requires that notice be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections * * * * But when notice is a person's due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it." Mullane v Central Hanover Bank & Trust Co., 339 US 306, 314-315 (1950).

Here, the tenant of record was entitled to notice of this proceeding (as well as notice of the motion decided herewith). Here, when petitioner attempted to notify her, it knew that she was not at the premises but was incarcerated. Here, petitioner served process on her not at the place of her incarceration but at the premises. The court holds that attempting service at the premises, rather than at the place of her incarceration, does not constitute the employment of means "such as one desirous of actually informing the absentee might reasonably adopt to accomplish it," Mullane, supra. Accordingly, the court dismisses this proceeding. [*4]

The court will mail copies of this decision and order to the parties [FN1].

DATED: March 17, 2008

New York, New York

Gary F. Marton, J.H.C. Footnotes

Footnote 1:The moving papers and other documents in the court file do not reveal the name or address of the place of incarceration. Unlike petitioner, the court has neither the obligation nor the means to try to learn the whereabouts of the tenant and/or occupants of the premises. Accordingly, the court has no alternative but to mail a copy of this decision/order to the tenant of record at the premises.