Civil Court of the City of New York, Bronx County, October 29, 2019

Bronx Legal Services for William Feliciano, respondent.

Jason D. Boroff & Associates, PLLC for petitioner.

The decision and order on this motion is as follows:

Procedural History and Arguments

This is a licensee holdover proceeding brought against William Feliciano (respondent or Feliciano) after the death of the tenant of record, Denise Santiago, on March 28, 2018. Mr. Feliciano lives in a building governed by the Housing and Urban Development (HUD) Section 8 Substantial Rehabilitation Program. Previously, respondent moved to dismiss the proceeding pursuant to CPLR 3211 (a) (10) on the basis that he was a necessary party to the proceeding, and that petitioner misused CPLR 1024 ("Unknown parties") by naming him as "John Doe" rather than as William Feliciano. The court joined Feliciano as a proper party in the interests of justice and judicial economy in order to resolve Feliciano's claims on the merits and accord complete relief between the parties in this one proceeding. (PRC Westchester Ave., LLC v Doe, Civ Ct, Bronx County, June 21, 2019, Bacdayan, J., index No. LT 14224/2019 BX.) Feliciano seeks to prove that he lived with the deceased tenant of record for more than one year before she died from cancer, and that they were involved in an emotionally and financially committed nontraditional family relationship, thus entitling him to succeed to the lease for the premises. (Aff of Feliciano at 4-7; answer at 1-3.)

Respondent now moves for discovery pursuant to CPLR 408. Specifically, respondent seeks disclosure of:

1. Documents, records, and communications relating to petitioner's procedures and standards regarding the approval of requests to add persons to the lease and/or annual income re-certifications.

2. The tenant file of Denise Santiago for the period 2010 to the current date.{**65 Misc 3d at 1064}

3. Documents and re-certifications, communications, and notations relating to receipt and processing of any requests by Denise Santiago to add respondent to the lease and/or annual income re-certifications.

4. Documents, re-certifications, communications and notations that in any way refer to respondent as in some manner associated with Ms. Santiago or the subject apartment.

5. Documents, re-certifications, communications, and notations that in any way refer to respondent as residing in the subject apartment.

6. Any leases or annual certification forms for the subject apartment since 2010. (Respondent's document demand at 11.)

Respondent argues that these documents are in the sole custody of petitioner, that he does not have access to the information contained therein regarding any requests by Santiago to add him to the household composition (Feliciano aff at 8), and that the documents will provide "additional clarity as to whether Respondent is entitled to succession at the subject premises." (Affirmation of respondent's counsel at 14.) Respondent also states that he is "severely disabled." (Aff of Feliciano at 3.)

In opposition, petitioner argues that without written authorization from the tenant of record, "privacy concerns" and the HUD Handbook preclude it from disclosing the information sought. Specifically, petitioner cites to chapter 5 of the HUD Handbook ("Determining Income and Calculation of Rent") which subjects it to civil penalties for unauthorized disclosure of income information and demographic data collected through the Enterprise Income Verification (EIV) system and other acceptable sources. (Affirmation of petitioner's counsel at 12.)^[FN1]

Petitioner's opposition also relies on the rules limiting record production in response to Freedom of Information Act (FOIA) requests. Section 552 (b) (6) of FOIA (exemption 6) exempts "personnel and medical files" as well as other "similar files" {**65 Misc 3d at 1065}from disclosure except where the public interest in disclosing the information outweighs the potential for an unwarranted invasion of personal privacy. (5 USC § 552 [b] [6]; Washington Post Co. v United States Dept. of Health & Human Servs., 690 F2d 252 [DC Cir 1982].) Accordingly, petitioner argues that HUD regulations specifically restrict petitioner from producing a third party's tenant file in response to a FOIA request as it falls within exemption 6 and "there is need in the public interest to withhold it." (24 CFR former 15.21.)

Petitioner does not dispute that Mr. Feliciano is disabled, or that he has the right to raise a succession defense to this proceeding.

In reply, respondent argues that any privacy concerns cited by petitioner "are mitigated by the fact that the Respondent was Ms. Santiago's partner and knew all the information contained in the tenant file . . . ." (Reply affirmation of respondent's counsel at 40.) Respondent also indicates that petitioner's confidentiality concerns are specious given that petitioner has already provided one of the very documents that could allegedly subject it to civil penalties, an unredacted HUD form 50059 dated September 29, 2017, containing confidential information including Ms. Santiago's race, citizenship status, date of birth, Social Security number, and annual income information. (Reply affirmation of respondent's counsel at 15; petitioner's exhibit A.) Respondent's attorney states upon information and belief that Mr. Feliciano "and/or his deceased partner . . . did in fact request that [he] be added to the household some time in late 2017 or early 2018," just before Ms. Santiago's death. Respondent argues that he has trouble remembering the exact facts and circumstances of events in 2017 and 2018 both because of his disabilities, and because of the emotional strain caused by the rapid decline and death of his life partner. (Affirmation of respondent's counsel at 34.) Respondent acknowledges that "while the information [sought] is not essential to [his] claim, it would certainly bolster his claim . . . ." (Reply affirmation of respondent's counsel at 49.)

Discussion

Discovery in summary proceedings is available only by leave of court upon a showing of "ample need." (Mautner-Glick Corp. v Higgins, 64 Misc 3d 16, 18 [App Term, 1st Dept 2019]; CPLR 408.) While there is no presumption in favor of discovery in licensee holdover proceedings, it has been found to be appropriate where the disclosure relates to the issue of succession. (217{**65 Misc 3d at 1066} E. 82nd St. Co. v Perko, 10 Misc 3d 146[A], 2006 NY Slip Op 50157[U] [App Term, 1st Dept 2006]; Quality & Ruskin Assoc. v London, 8 Misc 3d 102 [App Term, 2d Dept, 2d & 11th Jud Dists 2005]; Renaissance Equity Holdings LLC v Webber, 61 Misc 3d 298 [Civ Ct, Kings County 2018].)

In determining whether a party has established ample need for discovery, courts consider a number of factors, not all of which need be present in every case, including: (1) whether the movant has asserted facts to establish a claim or defense; (2) whether there is a need to determine information directly related to the claim or defense; (3) whether the requested disclosure is carefully tailored and likely to clarify the disputed facts; (4) whether prejudice will result from granting leave to conduct discovery; and (5) whether any prejudice caused by granting a discovery request can be diminished by an order fashioned by the court for that purpose. (New York Univ. v Farkas, 121 Misc 2d 643, 647 [Civ Ct, NY County 1983].)

In addition to its privacy concerns, petitioner cites to two Appellate Term cases, Ludor Props. L.L.C. v De Brito (48 Misc 3d 142[A], 2015 NY Slip Op 51261[U] [App Term, 1st Dept 2015]), and Valor Realty LLC v Ragno (26 Misc 3d 132[A], 2010 NY Slip Op 50062[U] [App Term, 1st Dept 2010]), in support of its argument that respondent has not demonstrated ample need for disclosure of Santiago's tenant file. Ludor is distinguishable as it involved a nonprimary residence holdover proceeding in which the lower court granted discovery to the landlord and denied the purported successor reciprocal discovery regarding the landlord's knowledge of her presence in the apartment as the facts necessary to prove her succession claim were peculiarly within her own knowledge. (Ludor, 48 Misc 3d 142[A].) It cannot be discerned from the decision whether the movant's disabilities or the nature of the relationship were an issue, and such facts are important to this court in rendering the instant decision and order. Valor is uninstructive as it is a two-sentence decision denying the tenants discovery regarding the [*2]landlord's knowledge of the tenants' alleged nonprimary residence at the premises. Valor is not relevant to a situation where, as here, a purported successor seeks information in a licensee holdover proceeding to prove a nontraditional family relationship.

Petitioner also cites to a recent Bronx County Housing Court decision which denied a purported successor's motion for disclosure of the deceased tenant's HUD file. (Petitioner's exhibit{**65 Misc 3d at 1067} E, PRC Simpson St., LLC v Maple, Civ Ct, Bronx County, Mar. 4, 2019, Garland, J., index No. LT 41884/18 BX.) Petitioner in Maple was represented by the same attorney as the petitioner in the instant proceeding. Maple is not controlling, and it is also distinguishable in that it did not involve a nontraditional family relationship. Moreover, in Maple, the petitioner therein argued that respondent should be relegated to a FOIA request for the information it sought. As discussed below, petitioner here inexplicably takes a directly contrary position by arguing that such requests are banned by federal law. (Affirmation of petitioner's counsel at 13.) In Maple, as here, petitioner voluntarily provided a HUD 50059 form containing sensitive data regarding the tenant's demographics and income, once again contradicting its own arguments regarding privacy and prejudice.

Lastly, petitioner's opposition relies on federal rules restricting disclosure in response to FOIA requests. Petitioner points to FOIA Appeal Legal Opinion GMP-0041 where the appellant sought a reversal of a denied FOIA request for a HUD 50059 form belonging to a party to a litigation. (US Dept of Hous & Urban Dev, FOIA Appeal: Tenant Information, Legal Op GMP-0041 [Jan. 15, 1992], available at https://www.hud.gov/sites/documents/GMP-0041LOPS.doc [last accessed Oct. 28, 2019].) The opinion affirmed the denial, finding that the 50059 form fell under the exempted documents contemplated by 5 USC § 552 (b) (6) and that the third party's substantial privacy interest in the form which contained a broad range of personal information outweighed the public interest asserted by the appellant: a "credibility issue" concerning the third party in an unspecified litigation with the appellant. (Id.) Petitioner also cites to American Fedn. of Govt. Empls., AFL-CIO, Local 1923 v United States, Dept. of Health & Human Servs. (712 F2d 931 [4th Cir 1983]), a Fourth Circuit Court of Appeals case, where the court affirmed the denial of a union's FOIA request seeking union member contact information from the Social Security Administration (its members' employer). These cases are uninstructive and unpersuasive as respondent here has not made a FOIA request and the analysis for granting a FOIA request (balancing the public's interest in the information against the potential for an invasion of personal privacy) is distinct from the standard for disclosure through discovery ("ample need").

In support of his motion, respondent cites to Henry Phipps Plaza S. Assoc. LTD Partnership v Kidd (Civ Ct, NY County,{**65 Misc 3d at 1068} Mar. 31, 2009, Elsner, J., index No. LT 87413/08 BX) and BSDC Joshua HDFC v Carter (NYLJ, June 5, 2009 at 27, 2009 NY Misc LEXIS 2486 [Civ Ct, Kings County May 27, 2009]). In Kidd, the court granted a strikingly similar disclosure request under very similar circumstances. Beverly Kidd claimed succession to the HUD regulated apartment of her deceased life partner with whom she had co-resided since 2003. She sought almost the exact same information through discovery as respondent here seeks. (Kidd at 5.) In Kidd, as respondent alleges herein, Kidd's nontraditional life partner requested that she be added to the household composition shortly before her death in 2008. The court held that Kidd would be unfairly prejudiced by limiting her opportunity to conduct a proper defense in that proceeding and granted her discovery request in its entirety with the sole exception of limiting production of the tenant file back to 2003, when Kidd began residing with the deceased tenant.

In Carter, Arthur Carter, the severely disabled son of the tenant of record in a building [*3]subject to the Section 8 Substantial Rehabilitation Program, sought discovery of his deceased mother's tenant file for the 30 years that he had co-resided with her. The court granted discovery from 10 years prior to his mother's death finding that the tenant file contained "records that . . . are material and necessary to [Carter's] defense . . . ." (Carter, 2009 NY Misc LEXIS 2486, *6 [internal quotation marks omitted].) In finding entitlement to discovery, the court cited to Stern v Levine (10 Misc 3d 129[A], 2005 NY Slip Op 51931[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2005]), an owner's use case where the landlord sought possession of a third floor walk-up apartment. There, the Appellate Term reversed an order denying tenant's motion seeking discovery of landlord's Social Security disability records which contained medical documents relating to the landlord's ability to climb stairs. The court in Stern, as in Carter, found that these records, despite their sensitive nature, were "material and necessary" to the tenant's defense that the landlord did not in good faith seek the premises for his personal use. (2005 NY Slip Op 51931[U], *2.)

Importantly, the court in Carter noted that "[in determining] whether 'ample need' has been shown, the court must look at the attendant circumstances of each case." (Carter, 2009 NY Misc LEXIS 2486, *4-5 [emphasis added].) Indeed, other courts have found it appropriate to consider whether a tenant has{**65 Misc 3d at 1069} pointed to special circumstances or "complex issues" when determining whether ample need has been demonstrated. (Trojan v Wisniewska, 8 Misc 3d 382 [Civ Ct, Kings County 2005]; see generally Andrew Scherer & Fern Fisher, Residential Landlord-Tenant Law in New York § 13:52 [2018].)

Examining the attendant facts and circumstances, the court finds that respondent has demonstrated ample need for disclosure. It is true that Feliciano could sustain his claim to succession regardless of the petitioner's knowledge of him in the apartment, or his presence on the income affidavits. (See Matter of Manhattan Plaza Assoc., L.P. v Department of Hous. Preserv. & Dev. of City of N.Y., 8 AD3d 111 [1st Dept 2004]; Los Tres Unidos Assoc., LP v Colon, 45 Misc 3d 129[A], 2014 NY Slip Op 51566[U] [App Term, 1st Dept 2014]; 2013 Amsterdam Ave. Hous. Assoc. v Estate of Wells, 10 Misc 3d 142[A], 2006 NY Slip Op 50084[U] [App Term, 1st Dept 2006].) However, Feliciano seeks discovery to bolster his claim that he and Santiago maintained a nontraditional family relationship—as potentially evidenced by Santiago attempting to add him to the household composition to ensure he was not displaced after her death. (Reply affirmation of respondent's counsel at 14; respondent's exhibit A in reply; see also Kidd.)

With the advent and codification of Braschi v Stahl Assoc. Co. (74 NY2d 201 [1989]), nontraditional family members are conferred the same opportunity to succeed to tenancies as tenants in traditional relationships.^[FN2] Braschi and its progeny instruct that nontraditional family members in New York State must be accorded equal benefits in housing related matters as traditional family members as long as the claim can be proved. However, proving a nontraditional family member relationship through the totality of the circumstances is inherently more complex than simply proving lineage and time frame. Thus,{**65 Misc 3d at 1070} tenants who seek succession rights through nontraditional relationships have a greater need for access to information that would support their claim of financial and emotional interdependence. Respondent has a heavier lift than a traditional family member and should be given no less of an opportunity to prove his defense and preserve his affordable home.^[FN3]

Accordingly, respondent's motion for discovery is granted but limited to the two years prior to Santiago's death—from March 2016 through March 2018—the only period during which respondent believes Santiago may have attempted to add him to the lease. (Reply affirmation of respondent's counsel at 34.) Petitioner's privacy and/or liability concerns are abated by this court's order that all documents be redacted as to Santiago's sensitive demographic and income information which petitioner has, in large part, already revealed to respondent and the court. (Petitioner's exhibit A.)

Conclusion

Accordingly, it is hereby ordered that respondent's motion for leave to conduct discovery is granted as modified by this decision so as to reflect production of documents redacted as to sensitive demographic and income information from March 1, 2016 through March 28, 2018; and it is further ordered that petitioner provide respondent with the documents requested no later than November 22, 2019.