Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion: Papers Numbered Notice of Motion and Affidavits Annexed 1 Answering Affidavits 2 Replying Affidavits 3 Decision and Order Procedural and Factual History: Petitioner commenced this licensee holdover seeking to recover possession of Apartment 3B located at 3010 Yates Avenue, Bronx, New York. The unit is within Eastchester Houses, managed and administered by the New York City Housing Authority (NYCHA). Petitioner alleges that Edgardo Miranda, the tenant of record, vacated the subject apartment and David Miranda is holding over without permission. David Miranda, hereinafter respondent, is the brother of Edgardo Miranda. Respondent appeared by counsel. John Doe and Jane Doe did not appear. The case was adjourned numerous times for respondent to pursue the Remaining Family Member (RFM) grievance process. Respondent lost the 1st step RFM grievance and the 2nd step RFM grievance. Respondent was denied an opportunity to have a 3rd step RFM grievance. On April 25, 2019, respondent’s counsel requested the appointment of a Guardian Ad Litem (GAL). Petitioner did not oppose the request. The case was adjourned for trial or settlement and for the appointment of a GAL. Paula Campbell was appointed as a GAL. The Court notes that respondent was not given a GAL during the RFM grievance process. Respondent now seeks leave to conduct pre-trial discovery, to wit, permission to conduct an examination before trial (EBT) of Keith Mitchell, a non-party witness. Respondent also seeks the apartment number for Keith Mitchell so that he can serve a subpoena once permission to conduct the examination before trial is granted. Respondent’s Argument: Respondent alleges that he has resided with his mother, Maria Miranda, since approximately 1996 and that he has “become an important member of the tenant community in the Eastchester Houses.” Respondent asserts that he has openly lived in the subject apartment and he does not know why he was not added to the lease. Respondent’s brother, Edgardo Miranda, was listed on the lease. After Maria Miranda passed away, Edgardo Miranda “became the tenant-of-record and the head of household.” Attorney Affirmation Para 12 On or about November 11, 2017, Edgardo Miranda signed a Notice of Intent to Vacate. Respondent remained in the apartment. On or about November 20, 2017, NYCHA changed the locks to the apartment. Respondent filed an Order to Show Cause in Lieu of Petition and Notice of Petition to Restore to Possession (Illegal Lockout) with the L&T Index No. 811086/17. The case was settled by a two attorney stipulation. Respondent was restored to possession without conferring tenancy rights. Petitioner then commenced the instant holdover case which is predicated on the fact that Edgardo Miranda, the tenant of record, vacated the subject apartment. In Matter of Porter v. NYCHA, 169 A.D.3d 455 (App. Div. 1st Dep’t 2019) the Court held that there is “no federal statute” that requires written consent to a permanent residency. In Henderson v. Popolizio, 76 N.Y.2d 972 (1990) the Court found that “it appears that petitioner has made a prima facie ‘reasonable showing’ that she resided in the subject apartment with NYCHA’s knowledge, and may, therefore qualify for remaining family member status.” Respondent argues that based upon Porter and Popolizio, respondent will qualify for remaining family member protection and his brother’s vacateur could not extinguish his tenancy rights. Respondent seeks leave to conduct an examination before trial of a non-party witness, Keith Mitchell, pursuant to CPLR §408, §3101(a)(4), §3106(b) and §3107. Respondent argues that this testimony will support his position that David Miranda was entitled to succeed to his mother’s tenancy and, as such his brother’s vacateur did not affect his tenancy rights. Respondent specifically states that Keith Mitchell, a member of the tenant association in the subject building, has known him as a long-term tenant. Respondent describes Mr. Mitchell as someone who “for the last few years has had a close relationship with the Eastchester management office.” Respondent seeks to depose Keith Mitchell so that he can prove that he is not a licensee. Miranda Affidavit Para 1, 7, 8, 15. Respondent also requests that petitioner provide him with the apartment number of the witness “to ensure that the subpoena is served correctly and without any unnecessary hurdles.” Petitioner’s Opposition: Petitioner opposes the motion and claims that the respondent is a licensee of Edgardo Miranda, the last tenant of record. Since respondent was not on the household composition before his mother’s death, Edgardo Miranda became the tenant of record. When Edgardo Miranda signed the Notice of Intent to Vacate, respondent became a licensee. Keith Mitchell’s potential testimony would be regarding the “amount of time Respondent resided with his mother.” Petitioner argues that the amount of time respondent lived with his mother “is irrelevant to Respondent’s remaining family member claim because his mother was not the last Tenant of Record.” Petitioner argues that this case involves an intervening tenant of record and that any testimony regarding Respondent’s mother is not sufficiently related to the issues in this holdover. Opposition Para 9. Petitioner cites “privacy concerns” as the reason why it is unwilling to provide Keith Mitchell’s apartment number and argues that respondent should be able to obtain the information with a “bit of diligence”. Discussion: Deposition of Third Party Witness: Discovery in a summary proceeding is available with leave from Court when the movant shows ample need. See New York University v. Farkas,_121 Misc.2d 643 (Civ. Ct. N.Y. Co. 1983), Mautner-Glick Corp. v. Higgins, 2019 N.Y. Slip Op. 29123 (App. Term 1st Dep’t 2019) Under the Farkas test, the Court should consider six elements to determine if ample need exists: a) whether the movant asserted facts to establish a cause of action or meritorious defense; b) whether the movant has demonstrated a need to determine “information directly related to the cause of action”; c) whether the information requested is “carefully tailored and is likely to clarify the disputed facts”; d) whether granting disclosure would lead to prejudice; and e) whether the court can structure discovery to protect pro se tenants against any adverse effects of the discovery request. Respondent’s Verified Answer dated May 31, 2018 asserts an affirmative defense — that he was entitled to succeed to his mother’s tenancy. Respondent alleges that the examination before trial of Keith Mitchell will show that petitioner had knowledge of David Miranda’s occupancy of the apartment and that petitioner’s failure to take any action to remove respondent from possession means it accepted him as a tenant. The information requested is carefully tailored. Respondent seeks to take an examination before trial of Keith Mitchell regarding his occupancy and life in the subject building. Mr. Mitchell’s testimony would address the facts of respondent’s occupancy which and may assist resolving the instant matter. Respondent does not discuss the 6th factor of the Farkas test. The Court need not examine it as neither party is appearing pro-se. The examination before trial is not adverse to the potential witness. Petitioner’s Opposition does not address the Farkas elements. Petitioner does not claim that it will suffer any prejudice if this request is granted. A non-party witness may be deposed “where the information sought is vital and within the knowledge of the other party or within the knowledge of a non-party witness ample need has been found.” Plaza Operating Partners Ltd. V. IRM, Inc., 143 Misc.2d 22 (1989). “The court need only decide whether the testimony sought is relevant or deleterious.” IA2 Serv. LLC v. Quinapanta, 51 Misc.3d 1222(A) (Civ. Ct. Kings Co. 2015), Respondent has asserted an affirmative defense to this proceeding. This is a motion for discovery. At this stage of the litigation, respondent only has to show that the testimony sought is relevant to his affirmative defense and that the information is within the knowledge of a non-party witness. Respondent has established that the information sought is “vital” (Smilow v. Ulrich, supra) and that the testimony is relevant to the case based on the Miranda Affidavit and the moving papers. Petitioner did not refute this and did not demonstrate any prejudice or dilatory tactics. Respondent is granted leave to conduct an examination before trial of a third-party witness, Keith Mitchell. The examination before trial is to be completed by December 13, 2019. Request for Third Party Witness’ Apartment Number: Respondent seeks the apartment number of Keith Mitchell. Respondent relies on NYCHA v. Mordan, 62 Misc.3d 1216(A) (Civ. Ct. Bronx Co. 2017) where this Court directed petitioner to produce a witness for an examination before trial. The witness in Mordan was “petitioner’s agent/employee during the relevant time periods.” When the original disclosure was sought, without objection, the potential witness was employed by petitioner. Keith Mitchell is alleged to be a long term tenant of the subject building and a member of the tenant association. Respondent alleges that Mr. Mitchell “has a close relationship with agents and employees of Petitioner’s management office, to the extent that Mr. Mitchell may even be deemed an agent of Petitioner.” Respondent’s Memorandum of Law Respondent’s allegation is not supported by facts or documentary evidence. There is no basis to determine whether Mr. Mitchell can be “deemed an agent of Petitioner.” Respondent relies on IA2 Serv. LLC v. Quinapanta, 51 Misc.3d 1222(A) (Civ. Ct. Kings Co. 2015) where petitioner-landlord was directed to provide contact information for a prior commercial tenant of the subject building. There, the petitioner relied on an affidavit of the prior commercial tenant (in a summary judgment motion that was withdrawn without prejudice). The respondent sought to depose the affiant as to the claims in that affidavit. Respondent cites Hoffman v. Ro-San Manor, 73 A.D.2d 207 (App. Div. 1st Dep’t 1980) where the Appellate Division held that “Fairness dictates that the identity of an individual who is to testify be discoverable by the opposing party.” Respondent also cites Zayas v. Morales, 45 A.D.2d 610 (App. Div. 2d Dep’t 1974) which is different from the case at bar: the movant was seeking names of witnesses that were to testify on behalf of the opposing party. In the instant case, there is no indication the NYCHA is planning to use Keith Mitchell as their witness. Petitioner argues that it is “unable to provide a resident’s apartment due to privacy concerns. In addition, Respondent has not alleged that this information, the apartment number of Keith Mitchell, is not available anywhere else.” Respondent’s Reply states “upon information and belief Respondent has made efforts to locate Mr. Mitchell’s apartment number, but has been unsuccessful.” The Reply does not explain what efforts have been made. It is an “upon information and belief” statement that is not supported by additional facts to outweigh the privacy concerns raised by petitioner. Based on the above, respondents request for the apartment number of Keith Mitchell is denied without prejudice Decision: It is ORDERED that leave to conduct an examination before trial of Keith Mitchell is granted. The parties are to schedule and complete the examination before trial by December 13, 2019. It is ORDERED that the case is adjourned to January 9, 2020 at 9:30am in Part A/Room B-129 for settlement or trial. This Decision/Order is being mailed to all parties. This constitutes the Decision and Order of the Court. Dated: October 29, 2019 Bronx, New York
