In this commercial holdover proceeding, landlord 46 Third, LLC ("46 Third") moves for use and occupancy. Tenant Clocktower 46, Inc. and Julie Ipcar d/b/a Hank's Saloon ("Clocktower") oppose the motion and cross-move for leave to conduct discovery. 46 Third opposes the cross-motion on the ground that Clocktower fails to demonstrate ample need for leave to conduct discovery in this summary proceeding.

On or about May 17, 2005, Clocktower entered into a written lease agreement with Do-Ray, the former owner of the premises. Do-Ray and Clocktower agreed to a five-year lease, commencing on December 31, 2005 and ending on December 31, 2010. The lease also contained an option to extend the lease for an additional five year term from December 31, 2010 to December 31, 2015.

By court order dated February 20, 2009, a receiver was appointed for the premises and authorized to take charge and enter into possession of the property due to an ongoing foreclosure action. Despite the appointment of a receiver, Clocktower allegedly contacted Do-Ray directly in early 2010 regarding its intention to exercise its option to extend the lease for an additional five year term. Clocktower contends that the parties executed one or more writings indicating this extension. [*2]

On or about July 24, 2012, the premises were sold to 46 Third. Thereafter, in August 2012, 46 Third sent Clocktower a Notice of Termination, terminating Clocktower's tenancy as of September 30, 2012. Clocktower did not vacate the premises. On October 1, 2012, 46 Third commenced a holdover proceeding.

Assuming arguendo that Fong's affidavit is admissible, 46 Third provides no credible evidence of the reasonable value of use and occupancy of the premises. The invoice that purportedly demonstrates Clocktower's rental history does not identify Clocktower as the tenant, and though 46 Third states the fair market value of the premises is $10,000.00, the invoice states the rent is $3,582.13 as of October 2012. A large disparity that was neither explained nor supported with competent evidence. See Notice of Motion, dated November 27, 2012, Exhibit A, Petition, Paragraph 10; Notice of Motion, dated November 27, 2012, Exhibit C.

Discovery in a Summary Proceeding

There is a presumption against discovery in summary proceedings. See New York

University v. Farkas, 121 Misc 2d 643, 468 N.Y.S.2d 808 (Civ. Ct., New York County 1984). The rationale being that discovery is adverse to the expeditious nature of such proceedings and should only be granted where "ample need" is demonstrated. See Steele v. Acevedo, 2002 NY Slip Op. 50102(U) (App. Term, 1st Dept. 2002); Houston Village Apartment Co. v. Zitin, 2001 NY Slip Op. 40237(U) (App. Term, 1st Dept. 2001); Plaza Operating Partners Ltd. v. IRM (U.S.A.) Inc., 143 Misc 2d 22, 539 N.Y.S.2d 671 (Civ. Ct., New York County 1989).

Clocktower alleges that it needs "limited discovery of the Petitioner and Receiver to [*3]determine what documents, correspondence, notes, etc. are in their possession to demonstrate extension of the Lease term and/or the Petitioner/Receiver/Petitioner's predecessor-in-interests' knowledge of the Lease extension." Notice of Motion, dated December 24, 2012, Paragraph 36.Clocktower does not explain why such documents are not in its possession and does not provide titles, descriptions, dates of executions, or dates when such documents were turned over to 46 Third and/or the receiver. More importantly, Clocktower and the original owner of the premises do not show that such documents are in existence as they preface all statements with, "[W]hile I believe that I sent . . . one or more writings to this extent . . . ." Notice of Motion, dated December 24, 2012, Exhibit 1 and Exhibit 2. Broad requests of this nature do not demonstrate "ample need." Banigan v. Hill, 57 AD3d 463, 868 N.Y.S.2d 313 (2d Dept. 2008) (Plaintiff is not required to produce documents absent showing that such documents were in existence at time motion was made.).

As an ancillary matter, Clocktower fails to adequately explain its reasoning for circumventing the court appointed receiver when allegedly renewing its lease. It implies that it communicated with the original owner about extending the lease term for an additional five years because the language in the Order Appointing Temporary Receiver In A Foreclosure Action precluded the receiver from entering into any lease agreement longer than one year. This argument, however, disregards the clear language in the Order which enjoined the original owner "from interfering in any manner with the property or its possession . . . ." Notice of Motion, dated December 24, 2012, Exhibit 4.

A receiver is an officer of the court and not an agent of the mortgagee or the owner. See Jacynicz v. 73 Seaman Assoc., 270 AD2d 83, 704 N.Y.S.2d 68 (1st Dept. 2000) (quoting Knickerbocker Ice Co., v. Benson, 155 Misc. 738, 279 N.Y.S. 86 (Mun. Ct. 1935)). During the pendency of a receivership, the property is in the possession of the court itself. Bank of Am., N.A. v. Oneonta, L.P., 97 AD3d 1023, 949 N.Y.S.2d 794 (3rd Dept. 2012). The moment a receiver is appointed to the premises, the original owner is divested of his authority to enter into subsequent leases. Hence, any prohibition of the receiver from entering into leases in excess of one year is not to preserve such authority with the original owner, but rather, for practical purposes, to protect and preserve the value of the property. A written extension of the lease between the original owner and Clocktower, without the receiver's consent, would undermine the very purpose of appointing a receiver.

Accordingly, the motion and the cross-motion are denied. All parties shall appear for

trial on April 30, 2013 in Room 603 at 10:00A.M.

This constitutes the decision and order of the Court.

Date: March 4, 2013__________________________

Genine D. EdwardsActing Justice, Supreme Court