Brooklyn Legal Services (George C. Gardner, III of counsel), for appellant. Claro, LLP (Joseph M. Claro of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Hannah Cohen, J.), dated March 17, 2023, deemed from a final judgment of that court entered March 20, 2023 (see CPLR 5501 [c]). The final judgment, insofar as appealed from, entered pursuant to so much of the March 17, 2023 order as deemed the answer interposed by occupant Lakisha Mayo, sued herein as "Jane Doe," as having been previously stricken and thereupon granted the branch of landlord's motion seeking summary judgment as against her, awarded landlord possession as against Lakisha Mayo in a nonprimary-residence holdover summary proceeding. The appeal from the final judgment brings up for review the March 17, 2023 order to the extent set forth above and so much of an order dated September 9, 2022 as granted the branch of a motion by landlord seeking to strike Lakisha Mayo's answer to the extent of striking her succession rights affirmative defense and precluded Lakisha Mayo from introducing evidence at trial that was not tendered in discovery.

ORDERED that the final judgment, insofar as appealed from, is reversed, without costs, so much of the March 17, 2023 order as deemed Lakisha Mayo's answer as having been previously stricken and thereupon granted the branch of landlord's motion seeking summary [*2]judgment as against her is vacated, and the branch of the motion seeking summary judgment as against her is denied; so much of the September 9, 2022 order as granted the branch of the motion by landlord seeking to strike Lakisha Mayo's answer to the extent of striking her succession rights affirmative defense and precluded Lakisha Mayo from introducing evidence at trial is vacated, and the branch of the motion seeking to strike Lakisha Mayo's answer is denied; and it is further,

ORDERED that, on the court's own motion, the clerk of the Civil Court is directed to amend the caption to reflect that Lakisha Mayo is a respondent in this proceeding.

In October 2018, landlord commenced this nonprimary-residence holdover proceeding against Angela Mayo-Ginsberg, the tenant of record, as well as other unnamed occupants to recover possession of a rent-stabilized apartment. Lakisha Mayo (Mayo) submitted an answer in which she stated that the tenant of record is her mother and asserted affirmative defenses including succession rights.

In a so-ordered stipulation dated February 28, 2019 (Jeannine Baer Kuzniewski, J.), Mayo stipulated, among other things, to "tender U & O [use and occupancy] for Jan 2019 & Feb 2019 plus U & O for March 2019 by March 11, 2019, and to pay U & O for April 2019 by April 10, 2019."

In April 2019, landlord moved for, among other things, an order striking Mayo's affirmative defenses, leave to conduct discovery against all parties and "pursuant to RPL [Real Property Law] § 220 and RPAPL § 745 (2) (a)," the payment of U & O through April 2019 and "[U & O] pendente lite at the rate of $834.86 per month commencing on May 1, 2019."

In a so-ordered stipulation dated June 11, 2019 (Marc Finkelstein, J.), Mayo consented "to that part of the Motion seeking payment of [U & O] pendente lite ($834.86 per month) commencing June 2019, and shall pay June 2019 use and occupancy by 6/20/19; July 2019 use and occupancy by 7/1/19; and August 2019 use and occupancy by 8/1/19, without prejudice, and pay all subsequent months' use and occupancy by the 5th day of each month."

In an order dated January 28, 2020, the Civil Court (Marc Finkelstein, J.), among other things, granted landlord's April 2019 motion to the extent of striking all of Mayo's affirmative defenses except for her succession rights defense. The order also granted landlord leave to conduct discovery. Specifically, the court permitted discovery from the tenant of record regarding the date she vacated the premises and, once that was completed, landlord could request discovery from Mayo with respect to her succession rights affirmative defense. The order further awarded landlord U & O arrears as "agreed upon" against Mayo through January 2020, plus U & O for February 2020, and continued monthly U & O "pendente lite as agreed by the 5th of each subsequent month."

In December 2020, landlord moved for, among other things, (1) an order striking Mayo's answer pursuant to former RPAPL 745 (2) (c) (i), due to her failure to pay arrears owed through [*3]January 2020 in the amount of $10,018.18, plus U & O for February 2020, and continued U & O as of March 2020, as directed by the January 28, 2020 order,^[FN1] and (2) an order pursuant to CPLR 3124 directing the tenant of record to comply with the January 28, 2020 discovery order and, in the event of her default, pursuant to CPLR 3126 striking the answers interposed by both the tenant of record and Mayo, and entering a final judgment in favor of landlord or, in the alternative, precluding the admission of any evidence at trial regarding Mayo's succession rights defense by either the tenant of record or Mayo.

In an order dated September 9, 2022, the Civil Court (Hannah Cohen, J.), insofar as is relevant to this appeal, granted the branch of landlord's December 2020 motion seeking to strike Mayo's succession rights affirmative defense. The Civil Court found that Mayo had failed to pay U & O as required by RPAPL 745 (2) (a) and, therefore, imposed the penalty of striking the affirmative defense as provided for in former RPAPL 745 (2) (c) (i). The order further stated that "respondents are precluded from introducing any evidence at trial that was not tendered in discovery." The court found that Mayo had failed to comply with the discovery provision of the January 28, 2020 order, and that there was no merit to Mayo's argument that the January 28, 2020 order did not require her to provide landlord with discovery regarding her successions rights claim until after the tenant of record had provided landlord with discovery regarding the date she vacated the premises.

In February 2023, landlord moved for summary judgment arguing, among other things, that, since no proper defense exists in the nonprimary residence proceeding, there are, as a matter of law, no material issues of fact for the court to determine. By order dated March 17, 2023, the Civil Court (Hannah Cohen, J.) granted landlord's motion finding that, since Mayo had "failed to comply with the [January 28, 2020] RPAPL 745 order . . . and as the answer had been stricken . . . there are no triable issues of fact."^[FN2] Mayo appeals from so much of that order as awarded landlord summary judgment against her. On March 20, 2023, a final judgment of possession was entered in favor of landlord. Mayo's appeal is deemed to be from so much of the final judgment as was entered against her (see CPLR 5501 [c]), which named her "Jane Doe."

Contrary to the finding of the Civil Court in the September 9, 2022 order, so much of the [*4]January 28, 2020 order as directed Mayo to pay U & O was based upon the February 28, 2019 and June 11, 2019 so-ordered stipulations, not RPAPL 745 (2) (a). Upon a review of the record, we find that the so-ordered stipulations did not provide for the striking of the answer in the event of a default in payment, and hold that Mayo correctly argued in opposition to landlord's December 2020 motion that the Civil Court did not have the authority to grant that relief absent such a provision in the stipulations (see Myrtle Venture Five, LLC v Eye Care Opt. of NY, Inc., 48 Misc 3d 4 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; 49 Terrace Corp. v Richardson, 40 Misc 3d 135[A], 2013 NY Slip Op 51306[U], *2 [App Term, 1st Dept 2013]). Consequently, so much of the September 9, 2022 order as granted the branch of landlord's motion seeking to strike Mayo's answer based upon former RPAPL 745 (2) (c) (i) to the extent of striking Mayo's succession rights affirmative defense is vacated and that branch of landlord's motion is denied in its entirety.

Landlord's motion returnable in December 2020 did not seek to compel Mayo to comply with the January 28, 2020 discovery order. Rather, it sought a conditional order compelling the tenant of record to comply with that order and, if she failed to do so, striking both her answer and Mayo's answer, and the entry of a final judgment in favor of landlord or, in the alternative, precluding the tenant of record and Mayo from submitting evidence of Mayo's succession rights defense at trial. The January 28, 2020 order states that "[o]nce the date of vacatur and window period is determined via discovery of [the tenant of record], it is then appropriate and reasonable, as [landlord] requests, to conduct discovery of [Mayo], by way of deposition and document production, as to her succession claim, with reference to the two year period prior to the date on which [landlord] alleges [the tenant of record] actually vacated." Contrary to the Civil Court's determination in the September 9, 2022 order, this language made it unequivocal that Mayo did not have to provide landlord with discovery relating to her succession rights affirmative defense until after the tenant of record had provided landlord with discovery as to the date she vacated the premises. It is uncontroverted that the tenant of record has yet to provide landlord with any such discovery. Under the circumstances, there is no basis to prohibit Mayo from producing evidence at trial based on the tenant of record's failure to comply with the discovery order (see CPLR 3126 [2]). Further, the record clearly shows that the January 28, 2020 order was not a conditional order of preclusion. Consequently, so much of the September 9, 2022 order as precluded Mayo from introducing evidence at trial is vacated.

Since the branch of landlord's motion seeking summary judgment against Mayo was based upon her succession rights affirmative defense having been stricken, and we have vacated so much of the September 9, 2022 order as struck that defense, the March 17, 2023 order, insofar as it granted that branch of landlord's summary judgment motion and to the extent it struck Mayo's answer, is vacated and the branch of landlord's motion seeking summary judgment against Mayo is denied.

Accordingly, the final judgment, insofar as appealed from, is reversed, so much of the March 17, 2023 order as deemed Lakisha Mayo's answer as having been previously stricken and thereupon granted the branch of landlord's motion seeking summary judgment as against her is [*5]vacated and the branch of the motion seeking summary judgment as against her is denied, so much of the September 9, 2022 order as granted the branch of the motion by landlord seeking to strike Lakisha Mayo's answer to the extent of striking her succession rights affirmative defense and precluded Lakisha Mayo from introducing evidence at trial is vacated, and the branch of the motion seeking to strike Lakisha Mayo's answer is denied.

TOUSSAINT, P.J., MUNDY and QUIÑONES, JJ., concur.