Elk 300 83 LLC v Dowd (2013 NY Slip Op 51042(U))

Elk 300 83 LLC v Dowd

2013 NY Slip Op 51042(U) [40 Misc 3d 127(A)]

Decided on July 2, 2013

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Elk 300 83 LLC, Petitioner-Landlord-

against

Rosemary Dowd, Respondent-Tenant, -and- Michael Dowd, Respondent-Occupant-Respondent, -and- "John Doe and/or Jane Doe", Respondents-Occupants.

Petitioner-landlord appeals from that portion of an order of the Civil Court of the City of New York, New York County (Jean T. Schneider, J.), dated September 21, 2012, which denied its motion to conduct discovery of nonparty witnesses Catherine Dowd and Kathleen Dowd in a holdover summary proceeding.

Order (Jean T. Schneider, J.), dated September 21, 2012, modified to grant petitioner-landlord's motion to the extent specified; as modified, order affirmed, with $10 costs to petitioner.

The outcome of this holdover summary proceeding turns on the bona fides of the succession defense interposed by respondent Michael Dowd, the grandson of the departed and defaulting rent stabilized tenant. In connection with this central issue, petitioner-landlord established ample need for additional disclosure in the form of deposition and document production of nonparty Catherine Dowd, Michael's cousin, who lived in the apartment premises for at least a portion of the relevant time period and thus presumptively possesses particular knowledge of respondent's occupancy status (see generally 117 Limited Partnership v Wagenberg, 38 Misc 3d 147[A], 2013 NY Slip Op 50356[U] [App Term, 1st Dept 2013]). Petitioner also established ample need for limited discovery from nonparty Kathleen Dowd, [*2]Michael's sister and the tenant's health care proxy, since Kathleen possesses particular knowledge of the facts giving rise to respondent's assertion that he provided medical care to tenant during the period of claimed co-occupancy (see 41 East 1st Street Rehab Corp. v Pearson, 33 Misc 3d 140[A], 2011 NY Slip Op 52168[U][App Term, 1st Dept 2011]). We limit the discovery relating to Kathleen to the information sought in petitioner's proposed interrogatories, its notice to produce being overbroad. No prejudice will befall respondent since it is petitioner's own case which will be delayed, if at all, by the additional disclosure (see Hartsdale Realty Co. v Santos, 170 AD2d 760 [1991]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 02, 2013