Recitation, as required by CPLR Section 2219(a), of the papers considered in review of this motion:

PapersNumbered

Notice of Motion and Affidavit Annexed.......................................1

Affirmation in Opposition to Petitioner's Motion.........................2

Affirmation in Reply......................................................................3

Respondent's Notice of Motion and Affirmation Annexed..........____4_____

Affirmation in Opposition..............................................................5

Other...............................................................................................

In this owner use summary holdover proceeding the parties seek different relief in their respective motions submitted on April 18, 2011. Neither motion has been labeled as a main or cross motion. The motions are therefore consolidated to form a single opinion.

Respondent moves for an order directing that petitioner's daughter, Angela Wei Len, appear for oral deposition. (CPLR-408). Contrary to petitioner's contention there is ample case law supporting the deposition of a non-party witness while survey the ends of justice. Respondent alleges that while petitioner is seeking recovery of apartment 2L located at 446 51st Street, Brooklyn, he contends that petitioner's daughter occupied apartment 1L pursuant to a similar prior holdover proceeding against the former tenant of that apartment.

Like other tenants in the same position, respondent questions petitioner's good faith intent in seeking the recovery of the apartment for personal use. In Nestor v. Britt, NYLJ September 29, 1990 p. 22 col. 4 (App. Term 1st Dept.) the Appellate Term affirmed the Trial Court's decision to permit deposition of the owners and family members for which possession was sought, to enable the tenant to ascertain the fundamental facts bearing on petitioner's intent to occupy the Apartment. (See also Shefa Estate v. Szymczak, NYLY May 30, 1991 p. 26 col. 6 [App. Term 2nd & 11th Jud. Dists]; Schintz v. Sudmar, NYLJ May 8, 2001 p. 21 col. 2 [2003 NY Slip Op 51277 U; deposition of alleged remaining family member]; Hughes v. Lenox Hill Hosp., 226 AD2d 4, 17-18 [1996]. Relevancy, prejudice and intrusiveness remains the yardstick by which such a request (to depose a non-party witness) is measured (Smilow v. Ulrich, 11 Misc 3d 179, 182). Petitioner's daughter has knowledge relating to the family's proposed use of the apartment. Deposing petitioner's daughter is relevant, nonprejudicial and unintrusive (Smilow v. Ulrich, supra p. 189).

Petitioner argues that respondent deposed petitioner and therefore no further discovery is necessary. Also petitioner contends that the instant motion is nothing more than a stall tactic by respondent to further delay the disposition of this proceeding. Contrary to petitioner's assertions this court concludes that the deposition of Angela Wei Len should be explored as it may shed further light on petitioner's inconsistent statements that in the prior 2006 holdover proceeding his claim was to have his family occupy the apartment 1L at the subject premises and not specifically his daughter. In the instant proceeding petitioner is basically stating similar allegations as to the use of apartment 2L as previously contained in the prior proceeding. Another factual issue concerns the length of time the daughter actually resided in apartment 1L. Whether petitioner and his family truly intend to occupy the premises as their primary residence is a question of fact that can only be resolved at trial. However, as previously stated where there is no harm or prejudice to petitioner by permitting oral deposition of petitioner's daughter as it may clarify petitioner's alleged good faith intention to occupy the premises.

Based upon the foregoing discussion the court denies without prejudice that branch of petitioner's motion which seeks restoration to the court's calendar. Also the court denies the branch of petitioner's motion which seeks a judgment of $9552.80. Respondent having shown ample need for discovery of petitioner's daughter Angela Wei Len; the request to depose her is conditionally granted upon payment by respondent of use and occupancy from January 2011 to the present at the [*2]previously agreed monthly rate. (Smilow v. Ulrich, supra at 185). The court further directs that said deposition be conducted on a mutually agreeable date within three (3) weeks from the date of entry of this order.

The foregoing constitutes the decision and order of this court.

Dated:Brooklyn, New York

May 20, 2011

______________________________

Anthony J. Fiorella, Jr., JHC