Civil Court of the City of New York, Kings County, April 28, 2023

Law Offices of Scott D. Gross, Westbury, for petitioner.

CAMBA Legal Services, Brooklyn (Vanessa Vecchiarello of counsel), for Yvens Mendez, respondent.

The decision and order on petitioner's motion and respondent's cross-motion is as follows:

For the reasons stated below, petitioner's motion is granted to the extent of restoring the proceeding to the calendar for trial. Respondent's motion seeking discovery is denied.

This is a licensee holdover proceeding brought by way of a petition dated April 8, 2022. (NY St Cts Elec Filing [NYSCEF] Doc No. 1.)[*2]

On August 25, 2022, CAMBA Legal Services appeared for respondent Yvens Mendez.^[FN1]

To date, respondent Yvens Mendez has not filed a written answer. Nevertheless, the parties have moved forward as if an answer asserting succession had been filed. Thus, respondent was to provide petitioner with informal discovery, and the proceeding was marked off calendar by way of decision and order dated October 12, 2022. (NYSCEF Doc No. 19.){**79 Misc 3d at 726}

Petitioner now moves this court to restore the matter to the calendar for trial following completion of discovery. (NYSCEF Doc Nos. 20, 21.)

Respondent opposes petitioner's motion on the grounds that discovery is not complete because, by way of cross-motion, respondent seeks discovery from petitioner. (NYSCEF Doc Nos. 23-26.) Respondent does not otherwise oppose petitioner's motion to restore the proceeding to the calendar for trial.

Respondent's cross-motion seeks production of all rent-stabilized leases for the apartment for the last 20 years and copies of correspondence between petitioner and respondent and other occupants of the subject premises. Respondent also seeks leave to depose the building's superintendent on the grounds that the superintendent might have information relevant to respondent's succession claim.

Petitioner opposes respondent's cross-motion on the basis that the requests are overbroad, that respondent's requests are not limited to a relevant time period, that respondent does not show ample need for the disclosure, and that the information sought would not be probative or relevant to respondent's succession claim.

Discovery in a summary proceeding is available only with leave of court (CPLR 408). Courts have long employed the "ample need" test to determine whether to grant such leave. This test was first formulated in New York Univ. v Farkas, which set forth several factors. The Farkas test considers: (1) whether the party seeking discovery has asserted facts to establish a cause of action; (2) whether there is a need to determine information directly related to the cause of action; (3) whether the requested disclosure is narrowly tailored and is likely to clarify the disputed facts; (4) whether granting an application for disclosure will prejudice a party; (5) whether the court can alleviate such prejudice by an appropriate order; and (6) whether the court, in its supervisory role, can structure discovery so that parties will not be adversely affected by discovery requests (New York Univ. v Farkas, 121 Misc 2d 643, 647 [Civ Ct, NY County 1983]).

The proponent of discovery does not need to demonstrate every one of these factors (Mautner-Glick Corp. v Higgins, 64 Misc 3d 16, 18 [App Term, 1st Dept 2019]). Since only some of the factors need be shown, in its simplest form the Farkas test{**79 Misc 3d at 727} requires a court to determine whether the proponent of discovery genuinely needs the information requested and [*3]whether the proponent cannot obtain the information other than by obtaining the information from one of the parties in the case or from a third party.

However, the Farkas test does require that the cause of action or defense be properly pleaded. (3612 Broadway Partners LLC v Mejia, 79 Misc 3d 230 [Civ Ct, NY County 2023]; Groschlaude v Lawlor, 78 Misc 3d 679 [Civ Ct, NY County 2023].) Without a proper pleading, the court cannot determine whether there is a genuine need for the requested disclosure.

While the record reflects that respondent Yvens Mendez is claiming succession to the subject premises, respondent has not interposed an answer asserting a succession defense or set forth facts that would clarify the parameters of that defense. One of the documents submitted to the court file states that respondent Yvens Mendez is the son of the tenant-of-record. However, that statement is not a substitute for a pleading. Without a pleading, the court cannot determine respondent Yvens Mendez's alleged relationship to the tenant-of-record or the relevant time period for co-residency, i.e., one or two years prior to the death of the tenant-of-record. As such, respondent has not pleaded facts to establish a defense upon which discovery can be granted.

Even if a succession defense had been pleaded, respondent still has not demonstrated ample need to discover information related to his succession claim. Counsel for respondent argues that discovery would clarify important information related to respondent's succession claim. However, counsel for respondent does not explain how 20 years of lease renewals are directly relevant to respondent's succession claim.

Although at oral argument respondent's counsel was willing to limit the request to two years of lease renewals, this does not cure the defects in the request. At best, even if petitioner disclosed the requested renewal leases, and respondent had signed those leases along with the tenant-of-record, that would only prove that respondent signed the renewal leases. It would not prove that respondent co-resided with the tenant-of-record, which is an essential element of a succession claim.

Counsel for respondent also does not explain what information the building superintendent has that respondent does not also have. Nor does respondent's counsel explain why that information must be obtained before trial rather than, for example, through a trial subpoena.{**79 Misc 3d at 728}

Similarly, respondent's proposed document demand for "[a]ll correspondence between the management for Petitioner and the Tenants or Occupants" of the subject premises from 2017 to 2022 falls outside the relevant time period for a succession claim, and no reason is offered why these documents need to be produced in advance of trial.

Petitioner urges that respondent's motion must be denied because the motion does not annex an affidavit regarding why disclosure is necessary. For the proposition that an affidavit is required in a motion for discovery, petitioner cites to Midtown Realty Co. v General Instrument Corp. (NYLJ, Feb. 5, 1991, 1991 NY Misc LEXIS 891, *1 [App Term, 1st Dept] ["Tenant failed to adequately demonstrate the necessity for the requested disclosure in order to properly defend . . . this commercial nonpayment proceeding. In seeking such relief, tenant relied exclusively on a conclusory affirmation of its counsel, who was without personal knowledge of the facts . . . ."]).

More recent cases have ruled that an affidavit may not always be required, particularly where there is a verified answer raising defenses that cry out for discovery (Clinton-178 Towers LLC v Chapple, 58 Misc 3d 198, 206 [Civ Ct, Bronx County 2017] [granting discovery despite the [*4]absence of an affidavit because "a verified pleading may be substituted for an affidavit in many circumstances where the latter is required"]).

This court need not resolve the tension between these two principles. It is enough to rule that, in the instant case, the absence of an affidavit coupled with the absence of an answer make it impossible for the court to determine how the items requested fall outside respondent's knowledge, custody and control, or why respondent cannot present a full defense at trial without petitioner producing these items prior to trial.

For these reasons, respondent has not met the requirements of the Farkas test.

However, the analysis does not end there. The Farkas test is now 40 years old. While the Farkas test remains the best expression of the standard for granting discovery, much has changed over the past four decades. In particular, the number of proceedings heard by the New York City Housing Courts has exploded. For example, according to research conducted by the NYC Rent Guidelines Board, the number of nonpayment cases that were calendared in 1983 (coincidentally the year Farkas was decided) was approximately 93,000. Ten years later in 1993 the number of nonpayment cases calendared had risen to{**79 Misc 3d at 729} approximately 124,000. Ten years after that in 2003, the number was approximately 133,000. Ten years later in 2013, the number was 122,463.

Since 1983, except for the years where Housing Court was functionally closed due to the coronavirus pandemic, there have been only five years where the number of nonpayment cases calendared was fewer than the 93,000 reached in 1983. On average, the number of nonpayment cases calendared has risen about 30% since Farkas was decided.^[FN2]

In addition to this increase in the number of proceedings calendared, New York City has experienced a drastic shortage of affordable housing and a steep increase in housing costs across the board.^[FN3] When viewed as a whole, this situation has been aptly named a housing crisis.

As a result of this crisis, there has been a concomitant increase in the value of the rights to regulated units, as is evidenced by the large sums that landlords have historically spent to purchase those rights from rent-regulated tenants and the refusal of tenants to accept such sums.^[FN4] Essential services and amenities such as safe streets and parks, good schools, and quality healthcare are not evenly distributed across New York City. A family's access to these resources is determined in large measure by where the family lives. Similarly, landlords are often faced [*5]with many challenges in maintaining good housing in areas where the rent-rolls are modest.

Thus, both landlords and tenants are risking extraordinarily valuable property rights by litigating in Housing Court. This has led to an asymmetry in the law: a slip-and-fall case that is worth slightly over $50,000 is heard in Supreme Court, which has the resources to manage intensive discovery practice; a dispute over the rights to a highly prized rent-stabilized unit in a desirable neighborhood is heard in Housing Court, which lacks those resources.{**79 Misc 3d at 730}

In view of this imbalance, and in recognition of the purposes of CPLR 408, both courts and practitioners have begun to simplify the Farkas test. It is now commonplace for parties to consent to discovery in certain classes of summary proceedings, including challenges to the rent-regulatory status of an apartment, nonprimary residence cases, owner-use cases, and succession claims.

Thus, the modern approach to discovery in special proceedings is to view the Farkas test alongside a simpler question: would discovery speed a case towards a fair resolution, whether by settlement or after a trial? Where the answer is yes, leave to conduct discovery should be granted. Where the answer is no, leave to conduct discovery should be denied.

An example of this modern approach is the decision in 50th St. HDFC v Abdur-Rahim (72 Misc 3d 1210[A], 2021 NY Slip Op 50693[U] [Civ Ct, Kings County 2021]). The court in Abdur-Rahim noted that the rationale for CPLR 408 was that the Legislature envisioned special proceedings to be a speedy alternative to plenary actions, and the Legislature recognized that discovery could be an obstacle to the realization of this vision.

This does not mean that fairness should be sacrificed for speed or that discovery should never be granted in a special proceeding. In fact, the opposite is often true. Discovery can facilitate the purpose of speeding the proceeding towards a fair and orderly disposition. "Hiding the ball" not only renders litigation unfair but, almost as importantly, retaining evidence rather than disclosing it can impede the efficient resolution of disputes (see Eagle-Picher Lead Co. v Mansfield Paint Co., Inc., 203 App Div 9, 12 [3d Dept 1922] ["(t)he court has no interest in assisting the party to conceal the grounds of his prosecution or his defense, in the hope that surprise at the trial may give him advantage"]; see also 717 Sterling Corp. v Cook, 78 Misc 3d 1224[A], 2023 NY Slip Op 50345[U], *2 [Civ Ct, Kings County 2023] [noting that "disclosure of certain documents/information would serve the purpose of speeding up the litigation, to the benefit of all parties"]).

The upshot of these cases is that, as much as is possible, a special proceeding should be a chess match, not a poker game. While there is always a potential for discovery to delay a summary proceeding, the principle of Abdur-Rahim, when read in harmony with the older Farkas test, leads to a simple question: is the proposed disclosure genuinely needed prior to trial,{**79 Misc 3d at 731} and will the proposed disclosure speed up a fair disposition of the matter? Understood in this light, respondent's motion must be denied because the answer to the question is no.

In an ideal world, respondent's otherwise persuasive motion might be granted. In an ideal world information would flow freely for both landlords and tenants. But such is not the world of a special proceeding that is governed by the strictures of CPLR 408.

Since respondent's cross-motion for discovery must be denied, petitioner's motion must be granted because discovery is now complete.

Accordingly, it is ordered that petitioner's motion seeking to restore the matter to the court's calendar to [*6]be referred to a trial part is granted; and it is further ordered that respondent's cross-motion seeking leave of court to conduct discovery is denied.