Recitation, as required by CPLR Rule 2219(A), of the papers considered in the review of Respondent’s Cross-Motion for Leave to Engage in Pre-Trial Discovery: Papers Numbered Respondent’s Notice of Cross-Motion, Attorney’s Affirmation & Exs AA-GG 1, 2, 3-9 Respondent’s Memorandum of Law 10 Petitioner’s Attorney’s Affirmation & Affidavit in Opposition 11, 12 Respondent’s Attorney’s Reply Affirmation 13 Petitioner’s Attorney’s Affirmation & Affidavit on Sur-Reply 14, 15 Respondent’s Attorney’s Affirmation & Affidavit on Sur-Sur-Reply 16, 17 After oral argument, upon the foregoing papers and for the reasons stated below, respondent’s motion for leave to engage in pre-trial discovery is decided as follows. PROCEDURAL HISTORY & FACTUAL BACKGROUND This is a nonpayment eviction proceeding in which the petition, dated April 22, 2019, alleges that the premises are subject to Rent Stabilization and seeks rent arrears of $17,108.78, comprised of: $2367.60 per month for the months of February, March and April 2019; $1430 per month as a “preferential rent” for the months of September 2018 through and including January 2019; and a balance of $1299.50 for August 2018. On May 6, 2019, respondent by counsel filed a verified answer to the petition raising three Objections in Point of Law, three Affirmative Defenses and four Counterclaims. After an initial court appearance on May 13, 2019, motion practice followed and by Decision and Order dated April 28, 2020 Housing Court Judge Weissman, then sitting in this Resolution Part D, granted respondent’s motion to dismiss, without prejudice, due to a defective rent demand and petition; denied petitioner’s cross-motion for use and occupancy; and restored the case to the calendar for trial on respondent’s counterclaims. The April 28, 2020 Decision and Order referred the parties to the New York State Division of Housing and Community Renewal (DHCR) to determine the apartment’s legal rent; however, by written stipulation the parties agreed instead that this issue would be decided at trial in this court as part of respondent’s rent overcharge counterclaim. Judge Weissman thereafter denied petitioner’s motion to re-argue by Decision and Order dated August 24, 2020, and clarified his earlier decision to the extent of stating that, “this Court did not make a determination as to the legal regulated rent, did not hold that the rent must necessarily be the lower amount charged, and petitioner has preserved its argument to seek what it believes is the full legal regulated rent for trial.” Respondent’s cross-motion for discovery was transferred back to the undersigned, now sitting in Part D, for determination. The following facts relevant to this discovery motion are undisputed: Respondent’s initial lease, which also included a second tenant named Stephen Fristed, was for a 1-year-and-15-day term running from 9/16/14 through 9/30/15; it stated a monthly rent of $2094.37 and was accompanied by a rider1 “only for this Lease term” which gave the tenants a monthly credit of $794.37 “provided the monthly rent is paid on or before the first of each month.” Petitioner charged respondent and Mr. Fristed a monthly rent of $1300 ($2094.37-$794.37) under this lease. Petitioner registered with the DHCR only the higher amount of $2094.37 on 6/11/15 as the “legal regulated rent” (LRR) for the 2015 registration year, with “LEAS/RNL” stated as the reason for the increase above the prior year’s registered rent. Respondent and Mr. Fristed’s second lease, on the DHCR’s “RTP-8″ renewal lease form, ran from 10/1/15 through 9/30/16 and stated the same LRR as in the initial lease, $2094.37. Petitioner charged respondent and Mr. Fristed a monthly rent of $1325 under this lease2 and registered with the DHCR only the higher amount of $2094.37 on 5/17/16 as the LRR for the 2016 registration year. Respondent’s third lease was in his name alone, prepared on an initial lease form (not an RTP-8 renewal lease form), ran from 2/1/17 through 1/31/18 and stated a monthly rent of $2303.81 — a 10 percent increase above the prior rent of $2094.37. This lease was accompanied by a rider similar to the one that accompanied the initial lease: It stated that it was “only for this Lease term” and gave the tenant a monthly credit of $903.81 “provided the monthly rent is paid on or before the first of each month.” Petitioner charged respondent a monthly rent of $1400 ($2303.81-$903.81) under this lease and registered with the DHCR only the higher amount of $2303.81 on 5/5/17 as the LRR for the 2017 registration year, with “VAC/LEAS” stated as the reason for the increase above the prior year’s registered rent. Respondent’s fourth and last executed lease — a renewal lease (on the RTP-8 form) in his name alone — ran from 2/1/18 through 1/31/19 and stated a monthly rent of $2332.61 — a 1.25 percent increase above the prior rent of $2303.81. Petitioner charged respondent a monthly rent of $1430 under this lease3 and registered with the DHCR both the higher amount of $2332.61 as the LRR and the lower amount of $1430 as a “preferential rent” on 6/7/18 for the 2018 registration year. “LEAS/RNL” is stated on the DHCR registration statement as the reason for the increase above the prior year’s registered rent. Petitioner offered respondent a fifth lease (on the RTP-8 form) to commence 2/1/19 in his name alone with a monthly rent option of either a 1-year renewal for $2367.60 or a 2-year renewal for $2390.93, reflecting increases calculated at a rate of 1.5 percent or 2.5 percent, respectively, above the prior rate of $2332.61. Respondent rejected this offer. Respondent interposed his claim of rent overcharge in May 2019. The DHCR rent history reflects an LRR of $1658.24 filed with the DHCR on 7/23/14 for the 2014 registration year, under a renewal lease in the name of the prior tenant for the period of 4/1/14 through 3/31/15. The DHCR rent history reflects an LRR of $1594.46 filed with the DHCR on 6/14/13 for the 2013 registration year, under a renewal lease in the name of the prior tenant for the period of 4/1/13 through 3/31/14. Respondent seeks discovery pursuant to CPLR §§408, 3101 et seq. on his rent overcharge counterclaim; specifically, “regarding alleged individual apartment improvements” (IAIs), Respondent’s Memorandum of Law at pp. 1 & 22, made to his apartment before he moved in and after the prior tenant moved out. Respondent argues that he has shown the requisite “ample need” for the requested discovery, citing, inter alia, Hartsdale Realty Co v. Santos (565 NYS2d 527, 170 AD2d 260 [1st Dep't 1991]); Mautner-Glick Corp v. Higgins (64 Misc3d 16, 18, 101 NYS3d 810, 812 [App Term 1st Dep't 2019]); and New York University v. Farkas (121 Misc2d 643, 468 NYS2d 808 [Civ Ct NY Co 1983]). Respondent points to both his counterclaim for rent overcharge and the affidavit of petitioner’s managing agent Luis Delacruz (see fn 1, supra), which explains that respondent’s first rent of $2094.37 “was based on a vacancy increase of 16.25 percent from the previous legal registered rent of $1,658.24 plus an additional $10,040.50 in improvements to the subject apartment upon the vacature of the prior tenant.” Delacruz Affid. at 3. Respondent notes that Mr. Delacruz did not provide any documentation of the IAIs and argues that to counter his rent overcharge claim “Petitioner will have to prove that [IAIs] were made in order to have a chance of recouping those costs,” Resp’s Mem. of Law at p. 23, and that discovery should be granted as he “should be afforded the opportunity to meaningfully prepare for this aspect of the trial.” Id. Respondent limits the scope of his requested discovery to interrogatories and/or document production requests for eight items for the period beginning “prior to Respondent’s tenancy [which commenced September 16, 2014] and after the prior tenant vacated the premises”4 and ending July 31, 2018. Six of the eight items explicitly refer to the alleged IAIs. The seventh requests either a copy of any rider given to respondent upon his taking occupancy of the premises or, if no rider was provided, a statement of the reason why.5 The eighth item requests a detailed rent breakdown “from the inception of Respondent’s tenancy through to July 31, 2018, reflecting all charges and payments”.6 In support of the motion respondent annexes, inter alia, copies of (1) all leases between the parties (Exhibit EE); the DHCR’s rent registration history for respondent’s apartment pursuant to a request dated 9/20/18, reflecting registration information for every year from 1984 through 2018 (Exhibit FF)7; and petitioner’s deed to the premises, showing it acquired ownership on February 9, 1994 (Exhibit GG). Respondent acknowledges the applicability of the old 4-year statute of limitations for rent overcharges under CPLR §213-a and Section 26-516(a) of the Rent Stabilization Law, as opposed to the amended versions of these statutes effectuated by the Housing Stability and Tenant Protection Act of 2019 (HSTPA), Matter of Regina Metro Co, LLC v. New York State Div of Hous & Community Renewal (2020 NY LEXIS 779, 2020 NY Slip Op 02127 [Ct of App, April 2, 2020]), and highlights the long-standing exception to this rule where the landlord engaged in a fraudulent scheme to deregulate the apartment, Conason v. Megan Holding, LLC (25 NY3d 1, 29 NE3d 215, 6 NYS3d 206 [2015]); Matter of Grimm v. New York State Div of Hous & Community Renewal Off of Rent Admin (15 NY3d 358, 362, 938 NE2d 934, 912 NYS2d 491 [2010]); Thornton v. Baron (5 NY3d 175, 833 NE2d 261, 800 NYS2d 118 [2005]). Respondent argues that in this case there is sufficient indicia of fraudulent conduct by petitioner to warrant examination of records from 2014, the year respondent moved into the apartment and the year the alleged IAIs were presumably made, which is more than four years prior to the interposition of his rent overcharge claim in the answer he filed with this court in May 2019. In support of his claim that petitioner has engaged in a fraudulent scheme to deregulate his apartment respondent recites the following actions by petitioner: Failing to identify alleged IAIs as a component of respondent’s initial rent in both the 2015 DHCR registration and respondent’s initial lease; Offering a reduced rent under riders which created an “illegal, unconscionable on-time discount scheme”, Respondent’s Memorandum of Law at p. 23; Not registering the reduced rent with the DHCR for the years 2015 through 2017; Raising respondent’s rent by 10 percent after his co-tenant left; Increasing the rent by a total of 40.67 percent in just over four years from the $1658.24 charged to the prior tenant and registered with the DHCR in July 2014 to the $2332.61 charged to respondent in his most recently executed renewal lease. In opposition, petitioner cites to many of the same decisions as respondent, as well as to others, and argues that respondent has neither met the “ample need” standard of New York University v. Farkas, supra, nor made the requisite showing of a fraudulent scheme to deregulate the apartment to justify looking back beyond the applicable 4-year statute of limitations. Petitioner asserts that the base date for analyzing respondent’s rent overcharge claim filed in May 2019 is May 2015, four years earlier, and that “the base date rent as of May 2015 was $1,658.24 per month which was the rent registered on July 23, 2014″, Affirmation in Opposition at
