Opinion
No. 570022/15.
08-24-2015
LUDOR PROPERTIES L.L.C., Petitioner–Landlord–Respondent, v. Olga De BRITO, Respondent–Appellant, and “John Doe” and “Jane Doe,” Respondents.
Opinion
PER CURIAM.
Order (Brenda S. Spears, J.), entered August 14, 2014, insofar as appealed from, affirmed, with $10 costs.
Respondent De Brito's cross motion for reciprocal discovery in connection with her succession claim was properly denied. Respondent failed to demonstrate “ample need” for discovery to ascertain petitioner's “knowledge of [her] residence” in the apartment (see Valor Realty LLC v. Ragno, 26 Misc.3d 132 [A], 2010 N.Y. Slip Op 50062[U] [App Term, 1st Dept 2010]; see also New York Univ. v. Farkas, 121 Misc.2d 643, 647 1983 ). The facts relevant to respondent's succession claim, such as her residence in the apartment and the period of co-occupancy with the now-deceased tenant, are peculiarly within respondent's own knowledge (see generally 656 W. Realty, LLC v. Blanco, 32 Misc.3d 128[A], 2011 N.Y. Slip Op 51254[U] [App Term, 1st Dept 2011] ).
DORIS LING–COHAN–Concurring opinion.
I join my colleagues in voting to affirm the order under review which correctly denied respondent/tenant's cross motion for reciprocal discovery in this holdover proceeding, as respondent/tenant failed to demonstrate in her moving papers “ample need” for discovery, as required. See New York Univ. v. Farkas, 121 Misc.2d 643, 647, 468 N.Y.S.2d 808 (Civ Court, New York County 1983); 150 West 82nd St Rlty Assoc v. Linde, 36 Misc.3d 155(A)(App Term, 1st Dept 2012)(tenant demonstrated ample need for discovery relating to apartment improvements); 545 Eighth Ave. Assoc., L.P. v. Shanaman, 12 Misc.3d 66, 819 N.Y.S.2d 813 (App Term, 1st Dept 2006)(disclosure granted to tenants who established ample need for disclosure sought in connection with their illusory tenancy defense); Treasure Tower Corp. v. Chen, 20 Misc.3d 1109(A) (Civ Court, New York County 2008)(respondent found entitled to disclosure as ample need exists “to determine information ... directly related to the cause of action” lsqb;citation omittedrsqb;).
In concurring, however, I note that the lower court's denial of discovery, on the basis that the documentary discovery sought “would reveal the petitioner's litigation strategy”, was improper as, indisputably, such a basis is not part of the applicable criteria in determining whether “ample need” for discovery has been established. See New York Univ. v. Farkas, 121 Misc.2d at 647, 468 N.Y.S.2d 808; Smilow v. Ulrich, 11 Misc.3d 179, 806 N.Y.S.2d 392 (Civ Court, New York County 2005). By its very nature, the exchange of discovery amongst the parties, reveals the other opposing party's strengths, weaknesses and “litigation strategy”. As has been recognized, even in summary proceedings, “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.”. New York Univ. v. Farkas, 121 Misc.2d at 645, 468 N.Y.S.2d 808.
Additionally, to the extent that the lower court relied on “prejudice” to petitioner as a factor to deny respondent a right to discovery, such rationale was also incorrect. While prejudice is indeed a factor which the Farkas court considered, the “prejudice” contemplated is in the nature of inappropriate “delay” occasioned by the granting of discovery, which the Farkas court indicated could be alleviated by the fashioning of an appropriate order, such as, “conditioning a grant of a motion for discovery upon the payment of use and occupancy; ordering that all discovery must be done, if at all, within a relatively short time period”. New York Univ. v. Farkas, 121 Misc.2d at 647, 468 N.Y.S.2d 808. Here, there can be no prejudice to petitioner/landlord, as the case was marked off the court's calendar so that petitioner could conduct discovery with respect to respondent.