Recitation, as required by CPLR § 2219(a), of the papers considered in the review of respondents Vaughn Henry and Diana Henry's motion for a protective order pursuant to CPLR § 3103 and to amend the answer pursuant to CPLR § 3025:

Papers Numbered

This summary holdover proceeding, predicated on a notice to cure and notice of termination, was filed in February 2023. All respondents appeared through counsel and answered in May 2023. Subsequently, petitioner moved to dismiss respondents' affirmative defenses and second counterclaim and respondents cross-moved to dismiss. By Decision/Order dated October 24, 2024, Judge Joan Rubel granted petitioner's motion in part, by striking certain [*2]affirmative defenses and the second counterclaim, and denied respondents' motion to dismiss.

Petitioner then moved for discovery and for use and occupancy. The parties, through counsel, executed a stipulation granting petitioner's motion dated December 3, 2024. In February 2025, petitioner moved for discovery sanctions. By Decision/Order dated May 27, 2025, this court granted petitioner's motion to the extent of conditionally precluding respondents from relying certain documents requested in discovery.

On July 15, 2025, the court granted respondents' then-counsel's motion to withdraw. Petitioner also discontinued the proceeding against Zachariah Mack on the same date. In late August 2025, new counsel for respondents filed the instant motion for a protective order related to a notice to admit and to amend respondents' answer. Following the submission of opposition and reply papers, this court heard argument on the portion of respondents' motion not resolved by a two-attorney stipulation on September 4, 2025.^[FN1]

Pursuant to CPLR § 3103(a), "[t]he court may at any time on its own initiative, or on motion of any party or of any personal from whom or about whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device." Any such order "shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts." (CPLR § 3103(a)). Respondents seek a protective order as to the items included in petitioner's notice to admit, arguing that they concern the "heart of [p]etitioner's nonprimary [residence] claim" (Fernandez Aff., ¶ 5) and are, thus, improper as subjects for a notice to admit. Petitioner opposes the motion for a protective order, and asserts that items in the notice to admit "involved clear-cut factual matters about which one could not reasonably anticipate a dispute" (Filemyr Aff. ¶ 13).

A notice to admit may be served requesting an admission as to the genuineness of documents, correctness/fairness of a representation in a photograph, or the truth of any matters set forth in the request, "as to which the party requesting the admission reasonably believes there can be no substantial dispute at the trial and which are within the knowledge of such other party or can be ascertained by him upon reasonable inquiry." (CPLR § 3123(a)). However, "[w]here a [n]otice to [a]dmit seeks admissions on matters which go to material or ultimate issues in the case, it is improper." (National Union Fire Ins. Co. of Pittsburgh, Pa. v Allen, 232 AD2d 80, 85 [1st Dept 1997]; see also Marchese v Aston, 200 AD3d 531 [1st Dept 2021]; The Hawthorne Group, LLC v RRE Ventures, 7 AD3d 320, 324 [1st Dept 2004] [A notice to admit "is to be used only for disposing of uncontroverted questions of fact or those that are easily provable, and not for the purpose of compelling admission of fundamental and material issues or ultimate facts that can only be resolved after a full trial."] [Internal citation omitted]).

Petitioner's notice to admit includes 12 requests for admission, each of which bear on respondent Diana Henry's alleged connection to certain addresses, employers, and lawsuits in Texas. A central allegation in petitioner's notice to cure was Diana Henry and Vaughn Henry failing to utilize the subject premises as their primary residence in violation of their proprietary [*3]lease. Indeed, many of the allegations of nonprimary residence in the notice to cure, including maintaining a residence in Fort Bend County, Texas, voting in Texas, and being employed in Texas, are now incorporated as potential admissions in the notice to admit. As such, they are "ultimate facts" that will necessarily affect the ultimate outcome in this case. Accordingly, the court grants respondents' request for a protective order by striking items 1-7 and 10 from petitioner's notice to admit. The court finds items 8 and 9 (regarding the existence of a lawsuit filed in Fort Bend County, Texas and a requesting the genuineness of the petition filed therein) to be proper subjects of a notice to admit (see CPLR § 3123(a)). Respondents' time for responding to these items is hereby extended to October 3, 2025 in the interest of justice.

Having withdrawn their first and second proposed affirmative defenses, respondents seek amendment of their answer to add a third affirmative defense, which alleges that petitioner commenced the instant proceeding without proper authority. Specifically, respondents assert that petitioner's board of directors had not voted to terminate respondents' proprietary lease at the time of termination or the commencement of the proceeding. In opposition, petitioner argues that the proposed third affirmative defense lacks merit because a board vote after the termination nonetheless ratified the act and made it effective from the time of termination.

Motions for leave to amend "should be freely granted (CPLR 3025(b)) absent prejudice or surprise resulting from the proposed amendment, unless the proposed amendment is palpably insufficient or patently devoid of merit." (Badesch v Fort 710 Assoc., L.P. 233 AD3d 604, 604 [1st Dept 2024]). Upon due consideration, the court finds that respondents third affirmative defense is not palpably insufficient or patently devoid of merit. Notwithstanding petitioner's theory of ratification of the acts taken to terminate respondents' proprietary lease, ratification will only exist where the original act was "without authority." (Holm v C.M.P. Sheet Metal, Inc., 89 AD2d 229, 232 [4th Dept 1982]; see also Matter of 148 S. Emerson Partners, LLC v 148 S. Emerson Assoc., LLC, 157 AD3d 887, 888-889 [2d Dept 2018]). In its opposition papers, petitioner specifically denies that its agent, Jose Fernandez, was without authority to terminate respondents' proprietary lease (Filemyr Aff. ¶ 55). Accordingly, there are issues of fact as to whether ratification by the board of directors after the termination of the proprietary lease made the termination effective pursuant to the terms of the termination notice.

As the counterclaim for breach of warranty of habitability was previously pleaded (and not dismissed), its inclusion in the proposed amended answer is harmless surplusage. Respondents' second counterclaim, for attorney's fees, is adequately pleaded and not patently devoid of merit, however any determination as to the propriety of attorney's fees must await a determination on the merits (Graham Ct. Owners Corp. v Taylor, 24 NY3d 742, 752 [2015]). Accordingly, as petitioner does not adequately demonstrate undue surprise or prejudice, respondent's motion to amend the answer is granted to the extent that the amended answer (NYSCEF Doc. 57) is deemed served and filed, except to the extent that the first and second affirmative defenses are withdrawn (see Four Thirty Realty LLC v Kamal, 83 Misc 3d 138[A], 2024 NY Slip Op 51301[U] [App Term, 1st Dept 2024]).^[FN2]

The proceeding will be restored for trial transfer on October 8, 2025 at 9:30 AM in Part D, Room 524. This Decision/Order will be filed to NYSCEF.