Recitation, as required by CPLR 2219(A), of the papers considered in the review of this Motion for:DiscoveryPAPERS NUMBEREDNotice of Motion and Affidavits Annexed 1Answering Affidavits 2Replying Affidavits 3Decision/Order Upon the foregoing cited papers, the Decision/Order in this Motion is as follows:Motion granted to the extent of directing petitioner to respond to respondent’s Notice to Produce Documents, but not to appear for an Examination Before Trial, which is annexed to the motion as Exhibit F.HISTORY:Petitioner commenced this holdover proceeding seeking to regain possession of the subject premises alleging that respondent’s residential occupancy is illegal because the Certificate of Occupancy (“CO”) restricts the premises to commercial use. Petitioner alleges that respondent is the tenant in possession pursuant to a month-to-month lease, which expired by operation for the Notice of Termination. Prior to the Notice of Termination, the petitioner mailed the respondent a Notice to Cure, which informed respondent that he was occupying the apartment in violation of the CO and subjecting it to civil and criminal penalties as a result; and requiring respondent to correct the condition by October 10, 2017, or his tenancy would be terminated.1 Petitioner then served the Notice of Termination alleging respondent failed to cure committing a violation of a substantial obligation of his lease for which the petitioner was terminating the lease as of November 30, 2017. The Notice of Termination required respondent to vacate or be sued for possession. The petitioner further seeks $43,816.68 in back rent from June 1, 2016 through November 30, 2017; and use and occupancy at a market rate, not less than $2800 per month, from December 1, 2017 forward.Respondent answered, through counsel, alleging a general denial and four affirmative defenses and two counterclaims. First, petitioner cannot evict on the basis of occupancy in violation of the CO without first establishing inability to amend the CO to permit the residential use. Second, respondent alleges that the petitioner failed to properly plead the status of the premises;2 claiming the premises was rent stabilized by virtue of petitioner’s receipt of J-51 tax credits in 2010 when respondent’s lease commenced. Third, respondent alleges that petitioner cannot seek rent or use and occupancy from respondent where the premises is occupied outside the CO. Respondent’s fourth affirmative defense and first counterclaim, he alleges the rent charged is outside the rent guidelines and constitutes an overcharge; requiring treble damages. Respondent’s second counterclaim is for legal fees. Respondent admits that his lease is for residential purposes and that he uses it as suchMOTION:By notice of motion, respondent seeks discovery related to both: (1) the rent regulatory status of the premises, and (2) petitioner’s attempts, if any, to amend the certificate of occupancy. In support of its motion, respondent attaches the lease and all offered lease renewals; documentation indicating petitioner received a Disability Rent Increase Exemption tax credit in 2016 — usually only available to rent regulated leases; and documentation indicating petitioner received a tax abatement pursuant to the J-51 tax program in 2010 — only available to rent stabilized leases. In addition, respondent attaches pleadings for a non-payment case between the parties in which petitioner pleaded the premises as exempt from rent regulation due to exception based upon the legal regulated rent exceeding $2500 and the premises becoming vacant and re-rented after June 24, 2011. The leases indicate respondent took possession on July 1, 2010. Respondent also attaches the rent registration filed with the Department of Homes and Community Renewal (DHCR) indicating the apartment has been registered as exempt since records began in 1984.In opposition, petitioner points out that respondent does not deny that he is using the apartment for residential purposes. Petitioner argues that the rent regulated status of the premises is not relevant to the gravaman of this proceeding, which is that respondent is illegally occupying the premises and putting petitioner at risk of civil and criminal penalties. Petitioner further argues that occupancy in violation of the certificate of occupancy is per se dangerous and must be cured; and the request for discovery is simply a dilatory tactic, which prejudices petitioner. Petitioner also claims that the premises was subject of a substantial rehabilitation since 1974 and J-51 benefits had expired prior to respondent taking possession. Petitioner also admits that the premises was never registered with DHCR because it was never required to be. Petitioner states that the pleadings in the prior nonpayment case contained an error. The basis for deregulation should have been plead as substantial rehabilitation after 1974 and expiration of the J-51 exemption, which would be consistent with the claims in this proceeding. Petitioner fails to contest the authenticity, or the meaning of the documents attached to the respondent’s motion. At oral argument, petitioner also claimed respondent can obtain the information sought through the public domain.In reply, respondent reiterates the claims in its motion. Respondent also argues that the Multiple Dwelling Law, which prohibits occupancy contrary to the CO, is not meant to be an instrument of eviction. And, where the tenant is occupying the premises in the manner anticipated by the parties and for a number of years, as is the case here, eviction should not result unless legalization in not possible or is impractical. Respondent argues that all information regarding any attempt to legalize the property is in the particular knowledge and control of the petitioner; as is all information regarding the alleged substantial rehabilitation and expiration of the J-51 tax abatement.DECISION AND ORDER:The Multiple Dwelling Law was enacted to protect tenants from dangerous or unhealthy living conditions, not as a tool to evict tenants. Sima Realty LLC v. Philips, 282 AD2d 394, 395 (AD 1st Dep’t 2001) (reversing the lower court order of ejectment, finding instead “There is no merit to landlord’s contention that the occupants should be ejected because their residential use of premises that lack a residential certificate of occupancy is presumptively unsafe”).Petitioner’s contention that the rent regulatory status of the premises is irrelevant to the cause of action is incorrect. First, petitioner seeks rent and use and occupancy in the petition. The rent regulation is clearly relevant to those claims. Second, in the rent stabilized context, courts have dismissed proceedings brought pursuant to similar claims for being premature because it failed to allege the existence of violations and the owner’s efforts to legalize the premises. See 625 W. End, Inc. v. Howard, 2001 NY Slip Op 40496(U) (AT 1st Dep’t Oct. 23, 2001) (dismissing a holdover petition brought on similar facts pursuant to Rent Stabilization Code §2524.3(c) as “premature” because there was no proof of any violation having been placed, or that the tenant used the premises other than as intended by the parties, or that the certificate of occupancy was incapable of amendment).Given that the rent stabilized status of the premises is relevant, the court finds that respondent demonstrates ample need for the information sought. Respondent has produced documentary evidence that the premises may be rent stabilized. In response petitioner provides an affidavit of Elizabeth Novotny, the managing agent, swearing that the J-51 exemption (not abatement) had expired when respondent took possession and that the premises underwent a substantial renovation, but attaches no documentation of its claim. This lack of supporting documents combined with the allegations in the prior proceeding, the DHCR rent registration showing that the premises has never been registered despite receiving J-51 tax credits, and the CO showing that the premises was built prior to 1974 and contained at least 6 units work together to create ample need for the documentation requested. The document request is sufficiently tailored to reduce any prejudice. The information sought is within the particular knowledge of the petitioner and not available in the public domain.Petitioner may be prejudiced by the delay discovery will cause, thus the court denies respondent’s request for an examination before trial in an effort to reduce the delay. Petitioner is directed to respond to the Notice to Produce Documents of within 45 days of service and filing of a Notice of Entry of this Decision and Order. Case is off calendar pending completion of discovery and may be restored to the calendar by stipulation, motion on notice or order to show cause.This is the decision and order of the court, copies of which shall be mailed to the parties.Date: 10/12/18
