Recitation, as Required by CPLR Section 2219(A), of the Papers Considered in the Review of this Motion:Papers NumberedNotice of Motion and Affirmation and Affidavit and Exhibits Annexed 1DECISION/ORDER UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOW:Petitioner commenced this nonpayment proceeding to recover possession of the subject rent stabilized apartment #1B, at 2574 Bedford Avenue, Brooklyn, New York. The petition demands $15,025.68 in rent arrears based on a $225.68 balance for May 2017, and $1,850.00/month from June 2017 through and including January 2018. Respondent’s “Answer and Demand for a Bill of Particulars”, interposes a number of defenses and counterclaims, and seeks specific information relating to the amount of her rent.Respondent moves by notice of motion for an order granting her leave to conduct discovery pursuant to CPLR 408, and appends a proposed Notice for Production of documents. Respondent also seeks an order compelling petitioner to comply with her Demand for a Bill of Particulars pursuant to CPLR 3042. Petitioner has not filed opposition.Respondent’s unverified “Answer & Demand for Bill of Particulars” is dated May 14, 2018. The answer interposes defenses including that the demand is defective as it fails to assert a good faith estimation of rent due; the petition fails to state facts upon which it is based as it misstates the current rent; and the petitioner failed to name a necessary party, Irwin Acevedo, a tenant of record on the lease. The answer additionally interposes affirmative defenses and counterclaims for rent overcharge and breach of the warranty of habitability, and counterclaims seeking an order to correct, civil penalties, and attorneys fees.The respondent demands the petitioner provide her attorney with a Verified Bill of Particulars within thirty days of May 14, 2018. requesting four items. The respondent requests petitioner state the basis of its claim: 1) that she promised to pay $1979.73 monthly rent, 2) why $1929.73 does not exceed the lawful rent, and the basis for the increase in rent from $1477.95 to $1929.73, 3) provide the amount and date of each rent payment received by the petitioner or its predecessor in interest from the respondent since the last zero balance, and 4) state the the basis of the terms of the current lease and lease immediately preceeding it, and copies.Pursuant to the parties’ two attorney, so ordered, May 23, 2018 stipulation, the petitioner was to reply to the respondent’s Demand for a Bill of Particulars by June 15, 2018. The parties’ July 11, 2018 two attorney stipulation states the petitioner’s opposition to the motion is due by August 8, 2018, and the respondent’s reply by August 27, 2018. The court file indicates on August 28, 2018, the proceeding and motion were adjourned, at petitioner’s request, to October 10, 2018. The case was marked final against the petitioner. On October 10, 2018, both sides appeared, petitioner failed to submit opposition and the motion was submitted.There is no opposition to the motion, or to the demand for a Verified Bill of Particulars.Respondent argues in support of her motion that she has ample need for discovery because the legality of her rent is critical to her overcharge defense and counterclaim. She contends the appended DHCR rent registration (Exhibit A) shows prima facie evidence of a potential overcharge given the unexplained rent increases from 2005 to 2006, and from 2014 to 2015. Both of the increases exceed the allowable vacancy increase amounts. Respondent contends that those rent increases, along with the inconsistent and contradictory DHCR apartment registration filings, are discrepancies indicating a colorable claim of fraud, enabling her to review the rent history going back more than four years.Exhibit A is a certified copy of DHCR apartment registration information for the subject apartment from 1984 through 2017. The 2005 annual DHCR registration lists the “legal regulated rent” at $748.70, the “tenant” as Angelo Norman, with a lease renewal beginning 2/14/2004 and ending 5/31/2006. Respondent points out that for the 2006 DHCR registration year, the “legal regulated rent” increased $600.00 from $748.70 to $1348.70, with no explanation listed on the DHCR registration. The DHCR registration lists a lease beginning June 1, 2004, and ending May 31, 2006, and the “tenant” is listed as “Antoinetter Affcon”.There is no indication on the 2006 DHCR registration as to a vacancy lease, Major Capital Improvement (MCI), or Individual Apartment Improvements (IAIs) explaining the $600.00 rent jump from $748.70 in 2005 to $1348.70 in 2006. Respondent argues that a $600 increase is an 80 percent increase over the prior rent. Respondent argues that even assuming a 20 percent vacancy increase and a 12 percent longevity increase, the rent should have only reached $988.29 in 2006, not $1348.70. Respondent contends the petitioner would need to show almost $15,000 in IAIs to justify such an increase. Respondent points out that the landlord then failed to file a DHCR annual registration for the next two years, in 2007 and 2008.Respondent argues that even if the court is not inclined to let her review the rent history going back to 2005, she should be allowed to review the last rent prior to when she moved into the apartment in 2014, as her lease is the first preferential lease listed on the DHCR registrations.Respondent contends the Rent Code Amendments of 2014 would enable DHCR to examine the lease and rent history immediately preceding her preferential rent, even if it is before four years.Respondent’s B is a two page lease for the subject apartment between petitioner and respondent and Irwin Acevedo beginning August 1, 2014 ending “July 31, 2014″ at a monthly rent of $1910.62. Page one of the lease states “Preferential Monthly Rent for this lease term only: $1500.00.” Page two of the lease is signed by “Tenant” “Fiona Sydney”, and an illegible “Landlord” signature. There is no lease rider included in this exhibit.Respondent points out that the 2014 DHCR registration lists the “legal regulated rent” as $1477.95. One year later, when she moved into the apartment, the 2015 DHCR “legal regulated rent” rent jumped $432.67 to $1910.62, with no indication why the rent was increased. The 2014 registration lists the “tenant” as Antoinettie Affoon, Lisa Tempro, Veltie Tempro”, with a lease beginning 6/1/2013 and ending 5/31/2014. The 2015 DHCR registration lists the “legal regulated rent” as $1910.62, the preferential rent as $1500.00, the “reasons differ./change” as “Vac/Lease”, the tenants as “Fiona Sydney” and “Irwin Acevedo”, with a lease beginning on 8/1/2014 and ending on 7/31/2015.Respondent argues that this increase from $1477.96 in 2014 to her first rent of $1910.62 in 2015 represents a 30 percent rent increase of $432.67. Respondent argues even if the petitioner allocated a vacancy increase the legal rent is still inexplicable. Respondent contends even if petitioner took a 20 percent vacancy increase over the 2014 $1477.96 registered rent, the legal rent would only rise to $1773.54. Respondent argues the apartment needed repairs, had no new appliances, has old and worn floors, suggesting no IAIs took place after the last tenant vacated before she moved in. Respondent contends she has filed an HP repair action against the petitioner under HP index 6460/17, but fails to append a copy.Respondent’s C is a copy of a “HPD Building, Registration & Violation” report for the subject building. The first page of the report indicates there are 284 violations, with 59 “A” class violations, 209 “B” class violations, and 16 “C” class violations. HPD placed 5 “C” class violations, 67 “B” class violations and 20 “A” class violations on the subject apartment from 5/4/2016 to 6/3/2018.1Respondent states she did not observe any renovations, improvements, or new appliances when they moved into the apartment. The floors appeared worn and old, and repairs were needed. She states she never noticed any work or renovations being done in the apartment or building when she lived in apartment 4D in the building prior to moving into the subject apartment. She states the appliances are the same ones she had in her prior apartment, because she was directed to move her refrigerator and stove from apartment 4D to her current apartment 1B.Respondent contends that although the apartment is still rent stabilized, the landlord’s efforts to incorrectly increase the rent shows a fraudulent scheme to deregulate the apartment.Respondent states her name is Fiona Acevedo, and Sydney is her maiden name. She states she lived in another apartment at the building, 4D, then moved into the subject apartment 1B in 2014. She resides in the apartment 1B with her husband Irwin Acevedo. They accepted a one year lease with a preferential rent of $1500. She understands the legal rent at the time they moved in was $1910.62. She states they were not offered any paper work explaining why the rent was $1910.62, the lease did not provide an option to select a two year term, and she was told the apartment would be more expensive because it was a three bedroom unit.Respondent contends that the two unexplained rent increases, incomplete rent registrations, the landlord’s failure to provide a rent rider, or offer a lease that comports with the Rent Stabilization Code are all indicia of a colorable claim of fraud. Respondent contends these factors should enable her to review the rent history going back to 2004.DISCUSSION:Pursuant to CPLR Section 3042 (a):…Within thirty days of service of a demand for a bill of particulars, the party on whom the demand is made shall serve a bill of particulars complying with each item of the demand, except any item to which the party objects, in which event the reasons for the objection shall be stated with reasonable particularity. The assertion of an objection to one or more of the items in the demand shall not relieve the party on whom the demand is made from the obligation to respond in full within thirty days of service of the demand to the items of the demand to which no objection has been made.If a party fails either to respond timely or fully to the demand, the party seeking the bill of particulars may either move to compel compliance, or if the failure is willful, ask the court to impose penalties. CPLR 3042 (c). “…before the sanction of preclusion is granted or a pleading stricken, a showing of ‘willful or contumacious conduct’ is necessary…” Kovacs v. Castle Restoration and Construction, 262 AD2d 165 at 166, (AD 1st Dept, 1999)The purpose of a Bill of Particulars is to amplify the pleadings, limit proof and prevent surprise at trial. Fremont Investment & Loan v. Gentile, 94 AD 2d 1046 (2nd Dept, 2012), LeFrance Leasing Limited Partnership v. Alliance Elevator Company, 61 AD 3d 824 (2nd Dept, 2009) affirmed as modified 81 AD3d 900 (2nd Dept, 2011). Scalone v. Phelps Memorial Hospital Center, 184 AD2d 65 (2nd Dept. 1992). “The purpose of litigation is to achieve a just result and not to spring a surprise on one’s adversary. That purpose can only be hindered — not served — by failing to make proper disclosure of matters material and necessary to the prosecution or defense of an action, as the case may be…” Zayas v. Morales, 45 AD2d 610 at 612 (AD, 2nd Dept, 1974).. A Bill of Particulars is not an evidence gathering device. Scalone v. Phelps Memorial Hospital Center, Supra: Tully v. Town of North Hempstead et al. 133 AD2d 657 (2nd Dept., 1987) lv to appeal denied 85 NY2d 807 (1995); and Ginsberg v. Ginsberg, 104 AD2d 482 (2nd Dept. 1984)”…evidentiary material and material upon which the defendant has the burden of proof are not properly part of a bill of particulars…” Somma v. Sears. Roebuck and Company, 52 AD2d 784 at 785 (1st Dept, 1976).Based on the foregoing, the respondent is entitled to particulars as to her overcharge defense/counterclaim. Scalone v. Phelps Memorial Hospital Center. Supra. There is no verified bill of Particulars contained in the court file.Accordingly, the branch of the motion seeking an order directing petitioner to comply with a verified bill of particulars is granted to the extent the petitioner is directed to serve a verified bill of particulars in response to the items requested in respondent’s May 14, 2018 Demand, by November 30, 2018.Discovery is not available as a matter of right in summary proceedings. Discovery devices are available in a special proceeding pursuant to Article 31 of the CPLR by permission of the court under CPLR 408. Disclosure may be granted in a summary proceeding if ample need is shown and it will not unreasonably delay the proceeding. New York University v. Farkas, 121 Misc 2d 543 at 547 (Civ Ct NY Co, 1983). Farkas (supra) sets forth fix factors to be considered in determining if discovery is warranted in a summary proceeding, including, inter alia. whether the petitioner has asserted facts to establish a cause of action, and not for the purpose of either formulating a cause of action by the landlord or by the tenant to establish a defense; if there is a need to determine information directly related to the cause of action; if the requested disclosure is carefully tailored and is likely to clarify disputed facts; whether prejudice will result if granted; if prejudice can be diminished by a court order; and whether the court, in its supervisory role can structure discovery.“Ample need” must be demonstrated to conduct the requested discovery based on the type of proceeding and the desired information sought. Farkas, at 646-648. Ample need is apparent where the information needed to prosecute or defend the case is in possession of only one of the parties Miller v. Vosooghi, 2001 N.Y. Misc LEXIS 1383*, 225 N.Y.L.J. 74 (AT, 1st Dept, 2001), Smilow v. Ulrich, 11 Misc 3dd 179(Civ Ct, NY Co, 2005).The respondent has established “ample need” for discovery in this proceeding and that discovery is needed to prosecute her first affirmative defense and counterclaim of rent overcharge. The document demand in the notice to produce is carefully tailored to the respondent’s overcharge defense and counterclaim, and is not overly broad.Respondent has demonstrated there are irregularities and discrepancies that have occurred since 2004 demonstrated by sufficient evidence to support her claims of two unexplained jumps in the legal regulated rent, as discussed earlier in this decision.Respondent’s unopposed motion has put forth a colorable claim of fraud to enable her to review rent records going back more than four years. When fraud is involved as to the base rent a landlord charges a tenant, the four year statute of limitations is inapplicable. Grimm v. DHCR, 15 NY3d 358 (2010). See also Bogatin v. Windermere Owners LLC, 98 AD3d 896 (AD 1st Dept, 2012); Pehrson v. DHCR, 34 Misc 3d 1220(A), (Sup. Ct., NY Co., 2011); Dignam v. 305 Riverside Corp., 2012 WL 1410085 (Sup Ct., NY Co., 2012) mot to reargue/renew denied 2013 WL 1787518 (NY Sup Ct, 2013)…Generally, an increase in the rent alone will not be sufficient to establish a ‘colorable claim of fraud,’ and a mere allegation of fraud alone, without more, will not be sufficient…What is required is evidence of a landlord’s fraudulent deregulation scheme to remove an apartment from the protections of rent stabilization. As in Thornton, the rental history may be examined for the limited purpose of determining whether a fraudulent scheme to destabilize the apartment tainted the reliability of the rent on the base date…Grimm, supra at 367.Respondent appends a copy of her initial lease for the subject apartment, which does not include a rent rider. Pursuant to NYC Rent Stabilization Code 2522.5 (c):(1)…an owner shall furnish to each tenant signing a vacancy or renewal lease, a rider in a form promulgated or approved by the DHCR…including a detailed description in a format as prescribed by DHCR of how the rent was adjusted from the prior legal rent…Based on the foregoing, the branch of the motion seeking an order directing petitioner comply with the notice to produce documents is granted. The petitioner shall respond to the demand, appended as Respondent’s E, on or before November 30, 2018 for the time period February 14, 20042 to the present.The proceeding is adjourned to December 12, 2018, 9:30 a.m., room 509 for trial forthwith. This constitutes the decision and order of the court.November 7, 2018
