In this holdover proceeding, petitioner moves under CPLR 408 and 3102 for leave to conduct disclosure as to all three respondents and for an order compelling respondents to pay past use and occupancy and use and occupancy pendente lite. Respondent Grosso, who has filed the only affirmation in opposition to this motion, opposes disclosure on respondent Mickel, the scope of petitioner's proposed disclosure on Starzecpyzel and Grosso, and paying use and occupancy.

At issue in this case are matters of primary residence and succession rights surrounding a rent-stabilized apartment located at 55 West 14th Street, Apartment 9A, in New York County. A rental agreement between petitioner and Starzecpyzel, the rent-stabilized tenant of record, expired on October 31, 2009. Starzecpyzel has permanently vacated the premises, which is now occupied by Grosso and Mickel. In his answer to this proceeding, Grosso claims that he and Starzecpyzel co-resided in the apartment as their primary residence for the requisite two-year period required to establish succession rights. Mickel was served with the petition and the notice of petition but is a non-appearing party in this proceeding.

The first issue in this motion is whether Mickel — a non-appearing party — can be compelled to provide documents and appear for an examination before trial.

The standard to compel disclosure from a party in a summary proceeding is one of ample need. To determine whether this standard is met, the court must consider whether (1) the petitioner has asserted facts to establish a cause of action; (2) a need arises to determine information directly related to the cause of action; (3) the requested disclosure is tailored to clarify the disputed facts; (4) prejudice will result from granting disclosure; (5) any prejudice can be alleviated by a court; and (6) the court can structure disclosure so that the litigants' rights are protected. (New York Univ. v Farkas, 121 Misc 2d 643, 647 [Civ Ct, NY County 1983].)

A presumption favors disclosure in summary nonprimary residence proceedings. (See Hughes v Lenox Hill Hosp., 226 AD2d 4, 18 [1st Dept 1996], citing Cox v J.D. Realty Assocs., 217 AD2d 179, 183-184 [1st Dept 1995].) Applying both the ample need test and the presumption favoring disclosure in nonprimary-residence holdover proceedings, disclosure is warranted in this case. First, petitioner has set forth plausible grounds to maintain this proceeding. Second, a need arises to clarify disputed facts regarding the issues of primary residence and succession. Third, as will be discussed further, petitioner's request is carefully tailored to focus in and clarify the issue of Grosso's and Starzecpyzel's primary residence. Fourth, there is little chance of prejudice to respondents resulting from disclosure because it is petitioner who has made the request — having chosen to clarify facts and risk delay — thereby eliminating the need for an order fashioned for this purpose. Finally, the information sought is not particularly burdensome, can be provided in a short period of time, and is unlikely to impose particular hardships on Grosso, Starzecpyzel, or Mickel.

A party seeking disclosure from a non-appearing party must show not only ample need but also special circumstances "by establishing that the information sought cannot be obtained from other sources." (Bostrom v William Penn Life Ins. Co. of NY, 285 AD2d 482, 483 [2d Dept 2001].) Leave to conduct disclosure of non-party witnesses is permitted in nonprimary-residence holdover proceedings, however, despite the availability of disclosure from respondent-tenants. (See e.g. Houston Village Apt. Co. v Zitin, NYLJ, Oct. 8, 2001, at 18, col 1 [App Term 1st Dept] [noting that "tenant's wife possesses particular knowledge which could shed light on the issue of tenant's connection to her [own] apartment"]; 430-36 E. Seventy-Second Assocs. v Higginsen-Wydro, NYLJ, Apr. 30, 1992, at 23, col 2 [App Term 1st Dept] [granting landlord's motion to depose tenant's non-party husband "since he is clearly a party with informed knowledge as to tenant's occupancy of the apartment"].) Further, the presumption favoring disclosure in nonprimary-residence holdover proceedings is an important exception to the general view "that discovery is antithetical to the purposes of a summary proceeding.'" (Cox, 217 AD2d at 184, quoting 65 Central Park W. v Greenwald, 127 Misc 2d 547, 551 [Civ Ct, NY County, 1985].) The presumption should be read in conjunction with a strong policy argument regarding "the misuse of rent-regulated space [and] the contribution of underutilization of regulated housing to the general shortage of residential accommodations.'" (Hughes, 226 AD2d at 6, quoting Cox, 217 [*2]AD2d at 185.) Primary residence involves determining a tenant's intent. (See Heller v Joy, NYLJ, Feb. 22, 1984, at 6, col 1 [Sup Ct, NY County].) Because the parties do not dispute that Mickel has been living in the subject apartment, he can provide relevant information on the issue of Starzecpyzel's and Grosso's primary residences and succession rights.

The second issue concerns the scope of petitioner's request to produce documents.

Grosso opposes the demand to produce "[p]leadings, judgments and filings in any action, case, complaint, proceeding or matter before in any court or administrative body in which any Witness Party was named or called to testify, including civil, criminal and administrative proceedings." (Petitioner's Notice to Take Deposition Upon Oral Examination, Schedule A, Demand No. 30.) Grosso also opposes petitioner's "catch all" demand that requests the production of "[b]ooks, records, memoranda, documents and other evidence bearing upon Petitioner's cause of action and any defense by respondents." (Petitioner's Notice to Take Deposition Upon Oral Examination, Schedule A, Demand No. 40.) Grosso further argues that petitioner has failed to provide a sufficiently narrow time-frame for which documents are sought.

The scope of documentary demands must be carefully tailored to clarify relevant or disputed facts (see Farkas, 121 Misc 2d at 647) that, in this case, surround the issue of Grosso's and Starzecpyzel's primary residences and succession rights. Petitioner's request to produce of litigation documents bearing the respondents' names (Petitioner's Notice to Take Deposition Upon Oral Examination, Schedule A, Demand No. 30) meets this standard: These documents would evidence respondents' addresses at the time of their filing. Petitioner's "catch all" demand (see Petitioner's Notice to Take Deposition Upon Oral Examination, Schedule A, Demand No. 40) is overly broad and does not meet the Farkas standard. Finally, petitioner's notice provides that "[u]nless otherwise stated, documents dated, issued or relating to the period January 1, 2004 through the present date shall be produced." (Petitioner's Notice to Take Deposition Upon Oral Examination at No.4). Respondents have not provided the court with a date on which Starzecpyzel allegedly departed the apartment permanently. In a letter produced in petitioner's moving papers, Grosso suggests that he has been living in the apartment since 2005. (See Petitioner's Notice of Motion, Exhibit E.) Disclosure should be narrowed to documents dated, issued, or related to the period from January 2005 to the present.

The third issue in this motion is petitioner's claim for retroactive use and occupancy and use and occupancy pendente lite. Petitioner's request for use and occupancy is granted. Respondent is ordered to pay by July 9, 2010, arrears in rent due from December 2009 to present. Petitioner's motion for use and occupancy pendente lite is granted.

This proceeding is marked at calendar pending disclosure.

This opinion is the court's decision and order.

Dated: June 22, 2010

J.H.C.