BACKGROUND

This summary holdover proceeding was commenced by GEORGE VARUGHESE (Petitioner) against STEVE RITZEL, the rent-stabilized tenant of record (Respondent), seeking to recover possession of 162 East 37th Street, Apt 1f , New York, New York 10016 (Subject Premises), based on the allegation that Petitioner seeks to recover possession of the Subject Premises for his personal use and for the use of his immediate family.PROCEDURAL HISTORY

Petitioner issued a notice of non-renewal dated September 2007, advising that Respondent's lease, due to expire on January 1, 2008 would not be renewed, and that petitioner's son, Don Varghese intended to occupy the Subject Premises as his residence. The notice of Petition issued in February 2008 and the proceeding was originally scheduled to be heard on February 25, 2008. [*2]

On the intial return date, Respondent appeared by counsel, the proceeding was adjourned to March 24, 2008 and Respondent was to file an answer by March 17, 2008.

Respondent filed an answer dated March 14, 2008. The answer asserted a number of procedural defenses, and further asserts lack of good faith by Petitioner. The answer also asserts counterclaims.

Prior Motions

Motion to strike & cross motion for discovery - March 2008

On March 28, 2008, Petitioner moved for dismissal of Respondents defenses and counterclaims, and for payment of use and occupancy. Respondent cross-moved for discovery on April 28, 2008. Respondent withdrew his second, third and fifth defenses. Pursuant to a decision and order dated July 7, 2008, The Hon. Michelle Schreiber granted Respondent's motion, to the extent of setting the matter down for a traverse hearing, on July 23, 2008, and marked "off calendar" the balance of the motion and cross-motion.

Pursuant to a stipulation dated September 3, 2008, Respondent withdrew his first affirmative defense with prejudice, and waived traverse. The Court issued a decision on the remaining portions of the motion and cross-motion on November 5, 2008. The Court directed payment of use and occupancy pendente lite and granted Respondent's discovery request. The Court denied the balance of Petitioner's motion to strike. The Court marked the proceeding off calendar pending the completion of discovery.

Motion re change of counsel, completion of discovery and defaults

on use and occupancy and cross-motion for dismissal - April 2010

On April 22, 2010, Petitioner moved for an order directing its original counsel to execute a substitution of counsel in favor of new attorneys restoring the proceeding to the calendar for trial and compelling Respondent to complete discovery. The motion also sought relief based on Respondent's failure to pay use and occupancy as previously directed. Respondent cross-moved for dismissal. Pursuant to a decision and order dated September 16, 2010, the Court denied Respondent's cross-motion for dismissal, and directed Petitioner to complete discovery by producing documents within 30 days and scheduling depositions within 45 days. Pursuant to the Court's order the proceeding remained off calendar for the completion of discovery.

PENDING MOTIONS

On March 23, 2011, Petitioner moved to restore the proceeding to the calendar for trial asserting that it had complied with all proper discovery demands. Respondent cross-moved for leave to renew its motion to dismiss the proceeding as abandoned, or alternatively seeks an order striking the petition based on Petitioner's failure to comply with discovery.

That portion of Respondent's motion seeking renewal of its request to dismiss the proceeding as abandoned was referred to Judge Halperin, who issued an order May 6, 2011 denying the request for dismissal and referring the balance of the motion and cross-motion back to this court.

DISCUSSION

CPLR §3126 provides in pertinent part : "If any party ... refuses to obey an order for disclosure ... the court may make such orders, with regard to the failure or refusal as are just ..,". CPLR 3126(3) further provides that the Court may issue "an order striking out pleadings ... or staying further proceedings until the order is obeyed ...".

The Court finds that Petitioner has willfully failed to comply with two previous court [*3]orders directing disclosure. The letter from Petitioner's counsel dated October 18, 2010 (annexed as exhibit A to Petitioner's moving papers) is an example of this. In said letter, Petitioner's counsel asserts that the documents sought in numerous demands are irrelevant. As Petitioner has already been ordered twice to produce the documents, Petitioner is no longer entitled to object on the basis of relevance.

Petitioner asserts that Respondent should state why additional documentation is needed, no such requirement exists as two prior Judges have directed Petitioner to produce such documents. Judge Schreiber's November 5, 2008 order limited Respondent's document production request in only three respects:

1) Financial Information was permitted to be redeacted; and

2) No information on Real Estate Interests outside New York City need be provided; and

3) The time frame for the production of documents was to be 2006 forward.

Similarly Judge Halperin's order of September 16, 2010 directed Petitioner to produce all of the same documents, within thirty days or submit an affidavit from Petitioner that no such documents existed.

Petitioner has failed to comply with the outstanding orders. No affidavit has been submitted from George Varughese stating that the documents are not in existence. Petitioner's cavalier attitude towards its default in complying with these orders is evinced in George Varughese's February 23, 2011 affidavit wherein he states "If there was a reason, and reason at all other than Just because I want them' I could understand and would endeavor to procure them."

There is a reason, two prior Court orders outstanding since 2008. That is reason enough. In one sentence Petitioner admits he has not complied, although he has the ability to procure the documents, because he doesn't feel its necessary. This cavalier attitude towards compliance with Court ordered disclosure ".. Should not escape adverse consequence (Figdor v. City of New York, 33 AD3d 560)."

Based on the foregoing, Petitioner's motion to restore the proceeding for trial is denied. Respondent's motion is granted to the extent of staying the underlying proceeding until Petitioner complies with all outstanding discovery ordered by this Court. The prior order directing Respondent to pay use and occupancy pendente lite is hereby rescinded pending the term of the stay.

Once Petitioner has complied with all discovery demands, Petitioner may renew its application to restore the proceeding for a trial. This constitutes the decision and order of this Court.

___________________________

SABRINA B. KRAUS

Dated: New York, New York

June 16, 2011

OCA e-submission: no Judge E-Mail