42 West 15th St. Corp. v. Friedman

• Decision Date: 14 June 1955
• Citation: 143 N.Y.S.2d 159,208 Misc. 123
• Parties: TH STREET CORP., Landlord-Respondent, v. Theodore S. FRIEDMAN and Abraham Friedman, Tenants-Appellants.
• Court: New York Supreme Court

Page 159

143 N.Y.S.2d 159

208 Misc. 123

42 WEST 15TH STREET CORP., Landlord-Respondent, v. Theodore S. FRIEDMAN and Abraham Friedman, Tenants-Appellants.

Supreme Court, Appellate Term, First Department.

June 14, 1955.

Frank Moroze, New York City, Philip A. Paulson, New York City, of counsel, for appellants.

Otto A. Samuels, New York City, S. Sidney Heller, New York City, of counsel, for respondent.

Before HOFSTADTER, SCHREIBER and HECHT, JJ.

HOFSTADTER, Justice.

The landlord, a corporation, which became the owner of the premises 42 West 15th Street, New York City, on February 15, 1955, instituted this summary proceeding on March 7, 1955, to recover possession of the fifth floor in the building, occupied by the tenants as statutory tenants. The tenants have been in possession since September, 1941, and conduct a printing business in which they use heavy machinery. The proceeding is brought under section 8(d)(1) of the Emergency Commercial Space Rent Control Law, L.1945, c. 3, as amended, McK.Unconsol.Laws, §§ 8521 et seq., 8528(d)(1), to recover possession for the immediate and personal use of the landlord's sole stockholder. The petition alleges that he proposes to carry on in the space sought the business of manufacturing, assembling and jobbing pearls and costume jewelry and that he possesses a 100% interest in this business.

On March 18, 1955, the tenants served a verified amended answer, as well as the notice of examination and demand for a bill of particulars vacated by the order appealed from. The examination was noticed for March 28th and the demand required service of the bill of particulars on or before March 23, 1955. At that time the trial had been set for March 30, 1955.

The motion to vacate the notice and demand was made and presumably granted on the ground that neither an examination before trial nor a bill of particulars is allowable in a summary proceeding. This is the only question discussed in the briefs. Since the items in the notice and demand are not challenged, they are assumed to be free from objection. The answering affidavit shows ample need for both the examination and the bill of particulars. This need being demonstrated, must the remedies be refused merely because they are sought in a summary proceeding?

The reason given in the past for refusal of examinations and bills of particulars in summary proceedings has been that undue delay would result and the proceedings thus lose their summary character. This reason appears to be largely illusory at the present time. In the first place, the attitude of the courts towards examinations before trial has changed radically. Today examination before trial in litigation is accepted almost as a matter of course. Dorros, Inc., v. Dorros Bros., Inc., 274 App.Div. 11, 80 N.Y.S.2d 25. Not alone does it prevent surprise, but it leads to more efficient trials. There is no danger of inordinate delay in a summary proceeding, for the date of the examination and its conduct with expedition are always within the court's control.

Nor should it be forgotten that a summary proceeding, despite its name, is nonetheless a judicial proceeding, and that the ends of justice ought not be sacrificed to speed. The contention that an examination before trial is hostile to the nature of a summary proceeding is especially inapplicable here. The proceeding, as stated, is brought under section 8(d)(1) of...