May 20, 2024

On February 20, 2024, Michelle Itkowitz taught a certified continuing legal education class for Lawline, entitled “Landlord-Tenant Litigation in the Courtroom”. Below is an excerpt from the 39-page materials that accompany the program. The program has so far received 172 reviews, with an average of 4.9 out of 5 stars.

First, here are the great reviews the program garnered by the program so far:

• “So informative!”
• “I usually leave positive feedback just to be nice and get on with my day. But this is probably the most effective presentation I’ve completed on Lawline. Very thorough. Very logical progression. Very clearly expressed. So glad I chose this course with this presenter. Really well done.”
• “1 am taking all of her classes. Really solid.”
• “She is great.”
• “great and comprehensive”
• “VERY INFORMATIVE”

Excerpt:

DISCLOSURE AND DISCLOSURE-LIKE DEVICES IN SUMMARY PROCEEDINGS

A.    Farkas Test

Because a summary proceeding is, by definition, an expedited adjudication, disclosure is permitted only by leave of court,^[1] either by stipulation of the parties or by motion^[2] in which the movant demonstrates that the information sought is germane to the proceeding, that the movant has ample need for it, and that the request is carefully tailored to clarify the disputed facts.^[3] In New York University v. Farkas,^[4] the court articulated a test to determine whether a party seeking discovery has made the requisite showing of ample need. The prongs of the Farkas test are:

(1) whether, in the first instance, the party seeking discovery has asserted facts sufficient to establish a cause of action or defense. Thus, disclosure should not be permitted for a fishing expedition to obtain facts necessary to state a cause of action or defense;

(2) whether a need to determine information directly relates to the cause of action;

(3) whether the requested disclosure is carefully tailored and likely to clarify the disputed facts;

(4) whether prejudice will result from granting a motion for disclosure;

(5) whether any prejudice can be diminished or alleviated by a court order fashioned for this purpose, for example, conditioning a grant of a motion for disclosure upon the payment of use and occupancy or ordering that all disclosure be done quickly;

(6) whether the court can structure disclosure so that pro se tenants, in particular, will not be adversely affected by a landlord’s disclosure requests.

But a party seeking disclosure is not required to demonstrate all the above factors to establish ample need, nor is the above list comprehensive of factors the court may consider.^[5]

Even where disclosure is permitted in a summary proceeding, it is far more limited in nature and more carefully supervised than it would be in a plenary civil action.^[6]

B.    Stipulating to Discovery

Disclosure motions are routinely granted to landlords in nonprimary-residence holdover proceedings,^[7] to landlords when the tenant asserts a succession defense; to tenants in owner’s-use holdover proceedings,^[8] and more recently in cases where tenants assert that they are Rent Stabilized.[9]

Instead of a motion, the party from whom disclosure is sought may consent by stipulation to disclosure. Given the likelihood that disclosure will be granted in nonprimary residence cases and in owner’s-use cases, the party from whom disclosure is sought in these cases will often consent to disclosure. A party obtaining disclosure by stipulation is well advised to have the court so-order the stipulation so that the penalties for failure to comply with court-ordered disclosure, including those provided for in CPLR § 3126, are available.

C.    Bill of Particulars

Because it is characterized as “an amplification of a pleading rather than a disclosure device,”^[10] a demand for a bill of particulars may be served without leave of court. Restraint in the use of bills of particulars has been urged, however, because even “though not a disclosure device as such, the bill entails steps akin to one and if allowed to become standard could frustrate the purpose of a special proceeding.”^[11]

D.   Notice to Admit

A CPLR § 3123 notice is more commonly known as a “notice to admit”. Although, pursuant to CPLR § 408, in a summary proceeding, “leave of the court shall be required for disclosure” an exception has been carved out for a notice to admit, because such notice can have the effect of further expediting the summary proceeding.

While pursuant to CPLR § 3123, the notice to admit must be served at least 20 days before trial, in a summary proceeding a notice to admit may be served at any time not later than three days before trial.

The subject matter of a notice to admit should relate to the genuineness of any documents, the correctness or fairness of any photographs, or the truth of any matters of fact set forth in the request. Copies of such papers, documents or photographs shall be served with the request unless copies have already been furnished. This right has been circumscribed to exclude any “request [that the opposing party] admit the most fundamental and material issues of fact in the litigation.”^[12] A sworn statement by the client admitting, denying or setting forth the reasons for failing to admit shall be served not later than one day before trial, unless the court orders otherwise. If a party fails to answer the notice to admit, the court will deem the allegation admitted. If a party unreasonably denies an allegation contained in the notice to admit, and the party serving the notice to admit establishes the fact at the trial, then that party may seek the reasonable costs and attorney’s fees in proving such item.^[13] It is typical for parties to use a Notice to Admit with respect to the lease chain.

E.     Subpoenas

Trial subpoenas are available in landlord-tenant proceedings “to compel production of documents or testimony at trial but are not to serve as a pre-trial discovery substitute.”^[14]

Generally, a subpoena duces tecum may not be used for the purpose of discovery or to ascertain the existence of evidence.[15] A subpoena duces tecum must be utilized to compel the production of evidence that is known to exist, not to ferret out information.[16]

West 16th Realty Co. v. Ali, 1998, 176 Misc.2d 978 (Civ Ct, NY County 1998) was a non-primary residence case. In Ali, the trial subpoenas that landlord served on a bank and telephone company, seeking bank statements for a tenant and his wife over a five-year period and telephone company’s entire files for the same period on telephone numbers at three different premises in which tenant allegedly had an interest, were deemed an improper attempt to gain discovery that landlord failed to seek in pretrial phase of proceeding, and the Court quashed the subpoenas. The Court remarked:

While an attorney of record for a party may issue subpoenas requiring the production of documents at a trial (see, CPLR 2301), it is well settled that “a subpoena duces tecum may not be used for the purpose of discovery or to ascertain the existence of evidence”. Rather, its purpose is to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding. A trial subpoena may not be used as a “fishing expedition” to obtain materials that could have been obtained in pretrial disclosure.

Footnotes:

^[1] 952 Assocs., LLC v. Palmer, 52 AD3d 236, 236 [1st Dept 2008].

^[2] CPLR § 408.

^[3] Lonray, Inc. v. Newhouse, 229 AD2d 440, 440–41 [2d Dept 1996].

^[4] 121 Misc. 2d 643 [Civil Court of the City of New York, New York County 1983].

^[5] Mautner-Glick Corp. v. Higgins, 64 Misc. 3d 16, [App Term, 1st Dept 2019].

^[6] See Indo Canadian Realty Corp. v. Arroyo, 14 Misc. 3d 132(A) [App. Term, 1st Dept 2007] (disclosure demand seeking “any and all” documents to be used at trial by respondent properly denied, and discovery limited to respondent’s succession claim because tenant did not dispute landlord’s nonprimary residence allegation).

^[7] Uptown Realty Grp., L.P. v. Buffaloe, 5 Misc. 3d 430, 438 [Civil Court of the City of New York 2004] (“[T]he law recognizes a presumption in favor of discovery in summary proceedings commenced by the landlord on the basis of nonprimary residence.”), modified, 6 Misc. 3d 133(A) [App Term, 1st Dept 2005].

^[8] Smilow v. Ulrich, 11 Misc. 3d 179, 183 [Civil Court of the City of New York, New York County].

[9] Williams with 381 E. 160th LLC v Fana, NYLJ 1588006674NY01304118 [4/13/2020, Bronx Housing Court].

^[10] David D. Siegel, N.Y. Practice, § 555, at 954 (4th ed. 2005).

^[11] David D. Siegel, N.Y. Practice, § 555, at 954 (4th ed. 2005).

^[12] Harris v. S.A.S. Accounting & Mgmt., Inc., 15 Misc. 3d 145(A) [App Term, 2d Dept, 2d & 11th Jud Dists 2007].

^[13] See Gerald Lebovits & Julia Marter, Evidentiary Issues in the New York City Housing Court, 38 N.Y. Real Prop. L.J. 21, 25 (Winter 2010) (“A photograph should be admitted as substantive evidence unless the Housing Court judge is ‘relatively certain’ or ‘convinced’ of its accuracy and authenticity.”).

^[14] Gerald Lebovits, et al., Disclosure and Disclosure-Like Devices in the New York City Housing Court, 37 N.Y. Real Prop. L.J. 34 (Summer 2009).

[15] See Law Firm of Ravi Batra, P.C. v. Rabinowich, 77 AD3d 532 [1st Dept 2010]; American Exp. Property Cas. Co. v. Vinci, 63 AD3d 1055 [2d Dept 2009].

[16] See Fabbricatore by Fabbricatore v. Lindenhurst Union Free School Dist. 259 AD2d 656 [2d Dept 1999].