New York University v. Farkas

• Decision Date: 02 November 1983
• Citation: 468 N.Y.S.2d 808,121 Misc.2d 643
• Court: New York City Court
• Parties: NEW YORK UNIVERSITY, Petitioner-Landlord, v. Shelley FARKAS, Respondent-Tenant, and "John Doe" and "Jane Doe", Respondent-Undertenants. & T Part 49

Page 808

468 N.Y.S.2d 808

121 Misc.2d 643

NEW YORK UNIVERSITY, Petitioner-Landlord, v. Shelley FARKAS, Respondent-Tenant and "John Doe" and "Jane Doe", Respondent-Undertenants.

Civil Court of the City of New York New York County, L & T Part 49.

Nov. 2, 1983.

Rosenberg & Estis, P.C., New York City (Joseph Burden, New York City, of counsel), for petitioner-landlord.

Fischbein, Olivieri, Rosenholc & Badillo, New York City (Stuart F. Gruskin, New York City, of counsel), for respondents.

DAVID B. SAXE, Judge.

How summary should summary proceedings be? That question arises in connection with this motion made by the landlord for discovery.

The essential facts are these:

This summary holdover proceeding is premised upon allegations that the respondent does not occupy the premises as her primary residence. (Emergency Tenant Protection Act, Chapter 576, Laws of 1974, as amended by Chapter 403, Laws of 1983, hereinafter called the "Omnibus Housing Act"). The respondent-tenant disagrees, contending that the premises are her primary residence.

Under Section 55 of the Omnibus Housing Act, which became effective on June 30, 1983, the failure of a tenant to occupy a residence as a primary residence constitutes grounds for eviction. This legislation enables this Court to determine issues of non-primary residence.

The premises in question are located at 104 West 3rd Street in the Greenwich Village section of New York City. The landlord alleges that the respondent has entered into a lease agreement for another apartment in the West Village and annexes a copy of a purported lease agreement. Further, the landlord alleges that the respondent has her automobile operator's license listed at an address at 5 River Road, Tilson, New York and annexes a driver's license abstract and motor vehicle registration form.

The petitioner seeks permission of this Court to conduct an Examination Before Trial at which time the following information will be sought from the respondent:

a. Whether respondent Shelley Farkas filed New York City Resident Income Tax Returns for the years 1981 and 1982 and from what address she filed said returns;

b. Whether she occupies an apartment at the Westheath Housing Corporation and/or 5 River Road, Tilson, New York;

c. What portion of the time the respondent lives at 104 West 3rd Street, 465 West Street and 5 River Road;

d. Whether the respondent subleases any of the three premises to any other parties.

Under Civil Practice Law and Rules, Sec. 408, it is necessary to obtain leave of court before conducting an examination before trial in a special proceeding, of which a summary proceeding is one variety.

The invention of the summary proceeding was designed to provide the landlord with a simple, expeditious and inexpensive means of regaining possession of his premises in cases where the tenant refused upon demand to pay rent, or where he wrongfully held over without permission after the expiration of the term. Reich v. Cochran, 201 N.Y. 450, 94 N.E. 1080 (1911). It is argued that motions for disclosure should be denied in most summary proceeding cases, including this one, because disclosure is inconsistent with the speedy determination of rights. Further, it is argued that the landlord has failed to demonstrate "ample need" for the requested discovery under the rule set forth in Antillean Holding Co. v. Lindley, 76 Misc.2d 1044, 352 N.Y.S.2d 557 (Civ.Ct.N.Y.Co.1973).

The arguments for and against disclosure have been made in connection with the use in summary proceedings of pretrial devices such as motions to dismiss (CPLR 3211) or motions for summary judgment (CPLR 3212), which have been held applicable to summary proceedings. Metropolitan Life Insurance Co. v. Carroll, 43 Misc.2d 639, 251 N.Y.S.2d 693 (AT 1 1964). It is said that these motions, because they may lead to accelerated judgment, are consistent with the purposes behind summary proceedings, (See Siegel, New York Practice Sec. 577) whereas disclosure differs significantly because it encumbers the system rather than streamlines it. Id.

CPLR Sec. 408, Advisory Committee Notes (McKinneys) states:

"The requirement of an order for disclosure is designed to preserve the summary nature of a special proceeding. To allow disclosure on notice before the hearing, ... would almost certainly extend the eight-day notice of petition period."

This theory, however, has many shortcomings. First, only in cases where summary judgment or motions to dismiss are granted is the result accelerated. In most cases, where the motion is denied, delay is the result. On the other hand, disclosure may assist the speedy disposition of a case when it has served the purpose of clarifying the issues for trial. Further, disclosure may often lead to the settlement of cases or a successful motion for summary judgment as a direct result of the information learned.

The focus should be upon promoting the efficiency of the trial process as opposed to the speed of the trial. Discovery, like motions for summary judgment, when properly employed may introduce welcome efficiency to the litigation process. Undoubtedly, the discovery mechanism has been the subject of much abuse in recent years, but that does not negate its overall usefulness in proper circumstances. Since leave of court is required for disclosure in summary proceedings (CPLR Sec. 408), a court has the ability to structure discovery orders in such a way that discovery is permitted while, at the same time, the interests of all parties are safeguarded.

Discovery is not "... inherently hostile to the nature of the summary proceeding." 42 West 15th Street Corp. v. Friedman, 208 Misc. 123, 125, 143 N.Y.S.2d 159 (AT 1, 1955); Gioiello v. Schutz, N.Y.L.J. 10/31/73 p. 19, col. 8 (Civ.Ct. Kings Co.); ZH Control v. Small, N.Y.L.J. 10/5/78, p. 7, col. 2 (Civ.Ct.N.Y.Co.). Therefore, although there may be presumption against discovery in summary proceedings, (Dubowsky v. Goldsmith, 202 App.Div. 818, 195 N.Y.S. 67 (2nd Dept.1922)), exceptions to this rule have emerged. For example, in nonpayment summary proceedings involving the calculation of complex lease escalation formulas, the need for discovery may be presumed. Pamela Equities Corp. v. Frey, 120 Misc.2d 281, 465 N.Y.S.2d 659 (Civ.Ct.N.Y.Co.1983), and, if ample need is demonstrated, Antillean Holding Co. v. Lindley, supra, discovery may be ordered.

The fact of the matter is that summary proceedings, especially holdover cases, are rarely "simple" cases of holding over after a term. Housing matters have become more complex. The availability of quality housing stock in New York City is extremely low and...