This summary holdover proceeding was commenced by 7 EAST 86TH REALTY, LLC (Petitioner) against FRANCINE LEOF (FL) and DAVID KLENICKI (DK) (collectively Respondents), the tenant of record, seeking to recover possession of 7 East 86th Street - Apt. 11-A, New York, NY 10028 (Subject Premises) based on the allegation that Respondents had failed to maintain the Subject Premises as their primary residency.

Petitioner issued notice of non-renewal dated December 17, 2014, asserting that Respondents did not reside at the Subject Premises and owned properties in Westchester and [*2]Florida. Respondents' lease expired March 31, 2015, the petition is dated April 1,2015, and the proceeding was initially returnable April 16, 2015.

On that date, Respondents appeared by counsel, and Petitioner made an application to the court to have subpoenas issued to Verizon and Time Warner. The application was denied by the court (Milin, J) pursuant to a written order, which held that Petitioner was required to formerly move for disclosure and the case was not ready for trial.

Respondents served an answer dated April 22, 2015, admitting that DK did not primarily reside in the Subject Premises, but denying that allegation as to FL, asserting the affirmative defense of failure to state a cause of action and a claim for attorneys' fees.

Petitioner again submitted subpoenas to the court for signature on May 11, 2015, and again, pursuant to a written order the court declined to sign said subpoenas for the reasons previously stated.

On May 21, 2015, Petitioner moved for an order seeking dismissal of Respondents' defenses, discovery and payment of use and occupancy. Petitioner's motion was granted pursuant to a stipulation agreeing that FL would produce certain documents by July 31, 2015, Respondents would appear for depositions after September 7, 2015, providing for payment of use and occupancy, and marking the proceeding off calendar pending the completion of discovery.

Petitioner deposed FL on November 19, 2015, and DK on April 18, 2016.

THE PENDING MOTION

On May 17, 2016, Petitioner moved for leave to serve a discovery subpoena on Verizon Wireless seeking "all billing information, caller details, subscriber information, including cell phone tower information" ... with respect to FL. On June 27, 2016, the motion was fully submitted, the court heard argument and reserved decision. Four specific numbers are listed.

It is well settled that the standard for discovery in summary proceedings is ample need (NYU v Farkas 131 Misc 2d 643). Most of the discovery has already been completed in this proceeding. Both Respondents have already appeared for depositions and FL has produced significant documentation. FL agreed to produce statements for cell phone accounts in her possession pursuant to the parties' June 2015 stipulation.

In a non-primary residence proceeding, the tenant's physical location is a central issue to be determined at trial. In this case, Petitioner seeks to challenge the veracity of Respondent's claim that she primarily resides in the Subject Premises and DK, her husband, primarily resides in their Westchester home. Phone records in general have always been part of the documentation courts have relied upon in determining primary residence.

Cell phones and modern technology have upped the ante on the information provided by phone records. As one court has noted "... cellular telephones physically accompany their users everywhere - almost permanent attachments to their bodies (Commonwealth v Augustine 467 Mass 230)." The cell phone towers will serve to identify Respondent's location to some extent when using her cell phone. The information sought is relevant and appropriate for discovery, it has not already been provided to Petitioner, and Petitioner has been requesting same from the inception of the proceeding. Pursuant to the parties' previous stipulation, the relevant period for discovery was agreed to be December 1, 2012 to March 1, 2015.

The subpoena lists four phone numbers. Petitioner has established ample need for the 212 number, which Respondent identified as her cell number, however the moving papers fail to establish ample need for the other three phone numbers requested.

Based on the foregoing, Petitioner's motion is granted to the extent of allowing Petitioner to serve a discovery subpoena on Verizon Wireless for all information pertaining to the 212 number and otherwise denied. Petitioner shall provide Respondent with notification pursuant to CPLR §3120(3) within five days of compliance with the issued subpoena. The proceeding shall be calendared for a status conference on August 1, 2016.

This constitutes the decision and order of the Court.