952 Fifth Ave. (NYLJ/Rick Kopstein)
A tenant who claims a medical condition temporarily kept him from living full-time in his rent-stabilized Fifth Avenue apartment must undergo a medical examination as part of a non-primary residence eviction proceeding brought by his landlord, a judge has ruled.
Manhattan Housing Court Judge Cheryl Gonzales’s May 29 ruling in Windsor Plaza v. De Pinies, 84063/13, also denied the tenant’s request to inspect the building’s surveillance cameras.
The tenant, Pablo de Pinies, paid less than $2,200 per month for his two-bedroom apartment at 952 Fifth Ave., between 76th and 77th Streets, under his last lease. In June 2013, the landlord, Windsor Plaza, LLC, told de Pinies that it would not renew his lease, which was up for renewal on Oct. 1.
On Oct. 15, it filed a holdover proceeding, claiming that de Pinies had been living primarily in Spring Lake, N.J. for at least two years and had sublet the apartment without permission.
In his answer, de Pinies said that he left the apartment only temporarily, for medical reasons, and claimed that the proceeding was retaliation for an overcharge award he had won against the landlord.
The landlord moved for discovery, which in summary proceedings requires permission from the court. It sought an independent medical examination of de Pinies. It also sought phone, utility, financial and other documentary records that could provide evidence about his primary residence.
De Pinies responded that an independent medical examination would be invasive, and furthermore, that the statute governing such examinations requires a notice specifying the time, conditions and scope of the examination, which was not provided. He further argued that all discovery must be limited to the period from the last lease renewal, Oct. 1, 2011, to the notice of non-renewal in June 2013. He agreed to turn over his medical records, but only those pertaining to the conditions that he was relying on in the case.
De Pinies filed his own discovery motion, seeking tapes from the building’s surveillance cameras and to have an expert inspect the cameras themselves. He asked that his discovery motion be given priority over the landlord’s.
Gonzales, granting the landlord’s motion, said the landlord had demonstrated “ample need for discovery.”
“The information sought is proper, carefully tailored and directly related to the central issue in this proceeding,” the judge wrote.
Gonzales wrote that, because de Pinies had put his medical condition at issue, the landlord was entitled to an independent exam. She further ruled that the landlord was unable to comply with the statute on medical exams because it didn’t know enough about de Pinies’ condition. She ordered de Pinies to produce an affidavit outlining the medical reasons why he temporarily could not live in the apartment and ordered the landlord to comply within 15 days of receiving that affidavit.
Gonzales denied de Pinies’ discovery request without prejudice, writing that it was “unclear what the discovery sought would reveal.” She said de Pinies would be allowed to look at the surveillance tapes if the landlord chose to use them at trial.
Gregg Kurlander, of counsel at Kucker & Bruh, represents the landlord. He said the judge correctly recognized that de Pinies was trying to use his medical condition “as a sword and a shield in this case” by asserting it as a defense while opposing an examination.
“What the judge did is say, you can’t have it both ways,” he said.
He also said Gonzales correctly recognized de Pinies’ discovery request as “a fishing expedition.”
Samuel Himmelstein, a partner at Himmelstein, McConnell, Gribben, Donoghue & Joseph, represents de Pinies. He said he believed the landlord should not have been granted the medical examination until it had reviewed the relevant medical records.
“In my view, in the context of a summary proceeding, [an examination] shouldn’t be granted unless the landlord can show that after reviewing the medical records, which we were fully willing to supply, they can still show ample need,” he said. “The court is supposed to balance the granting of discovery with the least intrusive method. Get the records first.”