Plaintiff brings this action for, among other things, conversion, constructive eviction and breach of warranty of habitability, which arose as a result of plaintiffs' tenancy at the premises located at 327 Van Brunt Street, Unit 2-R, Kings County, New York. Plaintiffs executed a lease on June 1, 2008, for a term ending on June 30, 2009, at a monthly rent of $2750.00. Plaintiffs allege that they were subjected to various conditions throughout the lease term that made the apartment uninhabitable, including, but not limited to, the presence of vermin, mold and noxious odors. Defendants are alleged to have known about such conditions before they entered into a lease with plaintiffs.

On July 1, 2009, plaintiffs signed a renewal lease, which expired on July 31, 2010. Plaintiffs represent that they signed the new lease, despite the problems they had at the premises, "based on the housing shortage and representations by defendants that the conditions in the demised Premises would be corrected." However, plaintiffs now claim they remained in the apartment as month to month tenants, continuing to pay the same amount they were paying under the initial lease. Plaintiffs allege that defendants never signed and delivered the renewal lease to them.

In March 2010, plaintiff Helena Van Leirsberghe discovered she was pregnant, [*2]and plaintiffs allege they notified defendants in writing on March 25, 2010 that they would be moving out. On May 10, 2010, plaintiffs vacated the premises. Plaintiffs seek return of a $6000.00 deposit allegedly retained by defendants, as well as damages related to their other causes of action.

On June 10, 2010, plaintiffs filed their summons and complaint. Defendants answered and asserted several affirmative defenses, as well as two counterclaims. In their answer, defendants claim that the renewal lease was in effect until July 31, 2010, and they seek payment for the lease period after plaintiffs vacated because plaintiffs unilaterally terminated said lease. Defendants also counterclaim for attorney's fees.

On June 28, 2010 plaintiff served discovery demands upon defendants, including: a request for a bill of particulars on affirmative defenses, request for the production of documents, interrogatories, and notice for the deposition of defendant Brad Leffe. On August 24, 2010, a preliminary conference order was entered into which states:

Defendant to respond to outstanding discovery requests by 9/14/10 (w/o prejudice to any argument that objections are waived).

Plaintiffs claim that, to date, defendants have failed to respond to their discovery requests, or to produce Mr. Leffe for a deposition.

Plaintiffs now move to strike defendants' answer and counterclaims and preclude them from introducing evidence at trial regarding their affirmative defenses, pursuant to CPLR 3126. In the alternative, plaintiffs seek payment of costs and attorneys' fees incurred in connection with the instant motion. Plaintiffs argue that defendants' noncompliance is willful, and they should be granted the relief they seek. Defendants oppose and cross-move for a protective order pursuant to CPLR 3103.

Defendants, in opposition and in support of their cross-motion, argue that (1) plaintiffs' demand for bill of particulars on affirmative defenses is improper because it seeks evidentiary material; (2) the bank records sought in the D & I are protected by the Gramm-Leach-Bliley Act; (3) the demand that defendants produce correspondence, emails, and other such communications between the plaintiffs and defendants is over broad, and those items are already in plaintiff's possession; (4) the demand for copies of building violations should not be compelled because they are [*3]a matter of public record; and (5) the demand for a copy of a lease agreement between defendants and the tenants who moved into the apartment after Plaintiffs vacated is irrelevant.

CPLR §3103(a) provides that "the court may... on motion of any party... make a protective order denying, limiting, conditioning or regulating the use of any disclosure device" in order to "prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice...."

"The object of a bill of particulars is to amplify a pleading, limit the proof, and prevent surprise at trial . . . " (Arroyo v. Fourteen Estusia Corp.,194 AD2d 309[1st Dept. 1993]).

Plaintiffs seek all bank statements reflecting "[t]he security deposit defendants concede they took from plaintiffs at the commencement of plaintiffs' lease term in 2008,"and all bank statements reflecting security deposits obtained by other tenants in the building, including the names of the tenants, interest accrued and any withdrawals from such accounts.

CPLR §3101(a) generally provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action." The Court of Appeals has held that the term "material and necessary" is to be given a liberal interpretation in favor of the disclosure of "any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity," and that "[t]he test is one of usefulness and reason" (Allen v. Cromwell-Collier Publishing Co., 21 NY2d 403, 406 [1968]).

Plaintiffs have shown that the bank records regarding defendants' conduct as to their own security deposit are material and necessary to plaintiffs' allegations that defendants violated General Obligations Law 7-103 and 7-105, by "failing to maintain plaintiffs' security deposit in a segregated, interest bearing account, and failed to return the monies . . ." However, plaintiff has not shown that bank records sought concerning other tenant's deposits are material and necessary to their action, or that such discovery would not compromise the privacy of those tenants, who are not parties to the action. [*4]

The renewal lease agreement for the subject apartment is material and necessary to plaintiffs' defense of the counterclaim seeking reimbursement of the rent allegedly due on the renewal lease after plaintiffs vacated the apartment. Similarly, the lease of a subsequent tenant in that unit is material and necessary. Finally, "production of documents concerning . . . Buildings Department Violations should not be compelled to the extent that they are available as a matter of public record." (Penn Palace Operating, Inc. v. Two Penn Plaza Associates, 215 AD2d 231[1st Dept. 1995]).

Turning now to plaintiffs motion to strike or preclude, pursuant to CPLR §3126, a court may impose sanctions when a party repeatedly and persistently fails to comply with several disclosure orders issued by the court. (Yoon v. Costello, 29 AD3d 407[1st Dept. 2006]). Plaintiffs do not show how defendants' failure to produce requested discovery rises to the level of noncompliance necessary to impose the sanctions permitted under CPLR §3126. However, plaintiffs are entitled to all outstanding discovery which is not subject to the protective order, as well as the deposition of Mr. Leffe.

Wherefore it is hereby

ORDERED that the motion is denied; and it is further

ORDERED that the cross-motion is granted to the extent that defendants need NOT RESPOND to Item No.1, Item #3, Item #5, Item #8, Items #9-12, and Item #15, of plaintiffs' Notice for Discovery and Inspection dated June 28, 2010; and it is further

ORDERED that defendants shall provide a bill of particulars on affirmative defenses within 20 DAYS of service of a copy of this Order with notice of entry; and it is further

ORDERED that defendants shall respond to plaintiffs' Notice for Discovery and Inspection, dated June 28, 2010, to the extent provided herein, within 20 DAYS of service of a copy of this Order with notice of entry; and it is further [*5]

ORDERED that the deposition of Brad Leffe shall be held within 60 DAYS of service of a copy of this Order with notice of entry, if it has not already been held.

Dated: February 16, 2011____________________________________

Eileen A. Rakower, J.S.C.