Recitation, as required by CPLR § 2219(a), of the papers considered in the review of respondents' motion to dismiss, or in the alternative, for discovery:

This summary holdover proceeding based upon a Ninety (90) Day Notice of Termination ("90-Day Notice") was commenced in March 2024. Respondent Justin Linn, an attorney, filed a notice of limited appearance on behalf of himself and Christina Neville ("respondents") on March 26, 2024. Respondents interposed an answer with counterclaims in June 2024. An initial motion to dismiss was withdrawn in September 2024. Thereafter, respondents made the instant motion to dismiss, or in the alternative, for discovery. The motion was fully briefed by February 2025. However, thereafter, Mr. Linn withdrew as counsel for Ms. Neville and this court afforded Ms. Neville adjournments to attempt to obtain new counsel. Ultimately, this court [*2]heard argument on respondents' motion on July 15, 2025.^[FN1]

I. Motion to Dismiss

Respondents raise multiple grounds for dismissal. The court will first address the challenge to the service of the notice of petition and petition, as personal jurisdiction is a threshold issue (see 342 E. 67 Realty LLC v Jacobs, 106 AD3d 610, 611 [1st Dept 2013]; Elm Mgt. Corp. v Sprung, 33 AD3d 753, 755 [2d Dept 2006]). In his affidavit in support of the motion, Mr. Linn references the affidavit of service and states that the documents were not served personally but were instead left by the apartment door after a John Doe refused service. Mr. Linn also asserts that petitioner did not exercise due diligence before serving them, citing CPLR § 308(4).

Petitioner mainly opposes respondents' challenge to personal jurisdiction by arguing that respondents have waived the personal jurisdiction defense by interposing unrelated counterclaims. A counterclaim is unrelated for these purposes "when such counterclaim could potentially be barred under principles of collateral estoppel—where the parties or their privies are the same and where the issues in the plaintiffs' [petitioners'] claims are potentially identical and decisive of issues raised in the counterclaims." (Textile Tech. Exch. v Davis, 81 NY2d 56, 59 [1993]; see also ROL Realty Co. LLC v Gordon, 29 Misc 3d 139[A], 2010 NY Slip Op 52048[U] [App Term, 1st Dept 2010]; Friedman v Eisner, 23 Misc 3d 136[A], 2009 NY Slip Op 50817[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Upon assessing respondents' counterclaims, the court finds that those for a rent abatement and for rent overcharge are "unrelated" under the Court of Appeals' standard in Davis. This is a holdover proceeding seeking possession of the subject premises. Petitioner does not make any claim for rent in the petition; instead, only use and occupancy is sought. Thus, the court does not find that respondents would be barred by collateral estoppel from asserting the rent abatement and rent overcharge claims if they had not been interposed herein. Accordingly, the court finds that respondents have waived their personal jurisdiction defense and denies the request for dismissal on that basis.

Respondents also challenge service of the 90-Day Notice. The court notes at the outset that a challenge to service of a predicate notice cannot be waived by interposing unrelated counterclaims, as it does not implicate personal jurisdiction (see Nguyen v Perparim, 64 Misc 3d 129[A], 2019 NY Slip Op 51016[U] [App Term, 1st Dept 2019]). Mr. Linn states in his affidavit that he was never personally served with the 90-Day Notice, contrary to the assertions in the affidavit of service for the notice. He states that the person purportedly served was a 40-year-old, white male who was 5'8" and 180 pounds, with black hair, while he was a 37-year-old white male who was 5'10", with brown hair. He also surmises that petitioner's contractor, who more closely meets the description, was the person served (see Linn Aff., ¶¶ 8-10 [NYSCEF Doc. 11]). The motion annexes a purported photograph of the contractor, but it is not authenticated.

Petitioner opposes the challenge to service of the 90-Day Notice by arguing that the differences in appearance between the process server's affidavit and Mr. Linn's description amount to minor discrepancies that are insufficient to warrant a traverse hearing.

A challenge to service of a predicate notice must be sufficiently detailed to rebut the process server's affidavit (see 1711 Boone Ave. LLC v Alhudais, 84 Misc 3d 127[A], 2024 NY Slip Op 51449[U] [App Term, 1st Dept 2024]; Marmon Realty Group, LLC v Khalil, 72 Misc 3d 136[A], 2021 NY Slip Op 50733[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). Generally, "sharp discrepancies" between the appearance of the person served and the person challenging service will be sufficient to rebut the process server's affidavit (HSBC Bank USA, N.A. v Proctor, 232 AD3d 439, 440 [1st Dept 2024]; see also NYCTL 1998-1 Trust & Bank of NY v Rabinowitz, 7 AD3d 459 [1st Dept 2004]). However, "minor discrepancies . . . are generally insufficient to raise an issue of fact warranting a hearing." (Deutsche Bank National Trust Company v Yurowitz, 181 AD3d 646, 648 [2d Dept 2020]; see also U.S. Bank N.A. v Cherubin, 141 AD3d 514, 516 [2d Dept 2016]). Here, the court finds that respondents have offered only minor discrepancies between the person described in the process server's affidavit and Mr. Linn's description of himself in his affidavit. Thus, respondents have failed to sufficiently rebut the process server's affidavit to require a traverse hearing on service of the 90-Day Notice. The court denies dismissal on this basis accordingly.

Respondents next seek dismissal on the basis that Mr. Linn mailed petitioner a check for March 2024 rent on March 1, 2024, after the 90-Day Notice expired but before the commencement of this proceeding, thus vitiating the 90-Day Notice. Respondents attached a copy of the (personal) check, rent statement for March 2024, and the envelope in which the check was allegedly mailed. Petitioner opposes dismissal on this basis and argues that respondents only allege tender of payment, not receipt by petitioner within the "window period" between the expiration of the 90-Day Notice and the commencement of this proceeding. Petitioner also asserts that respondents have failed to prove that petitioner had any intent to relinquish its intention to proceed upon the 90-Day Notice.

Where a landlord "receives rent checks [after termination but before commencement] and does not immediately return them or claim and explain any inadvertence, the retention of the checks constitutes acceptance to vitiate the predicate notice." (591 Realty LLC v Curanaj, 228 AD3d 401, 401 [1st Dept 2024]; see also 205 E. 78th St. Assocs. v Cassidy, 192 AD2d 479 [1st Dept 1993]). While respondents claim that the March 2024 rent payment was sent on March 1, 2024, there is no proof showing that petitioner accepted the payment. Generally, at least within the framework of CPLR § 2103(b)(2), service of a paper by mail is presumed to be received by the addressee five days after mailing (see Board of Mgrs. of Mountainside Hills Condominium II v Pantaleone, 2025 NY Slip Op 06594, *2 [2d Dept 2025]; Matter of Fiondella v Town of E. Hampton Architectural Review Bd., 212 AD3d 811 [2d Dept 2023]). Thus, if Mr. Linn mailed the rent payment on March 1, 2024, it would be deemed received as of March 6, 2024.^[FN2] As petitioner filed this case on March 4, 2024, respondents have not demonstrated, as a matter of [*3]law, that petitioner vitiated its right to proceed by accepting rent during the window period (see Sebco Hous. Dev. Fund Co., Inc v Acosta, 66 Misc 3d 147[A], 2020 NY Slip Op 50236[U] [App Term, 1st Dept 2020] [Commencement correlates with Civil Court Act § 400 (which provides for commencement of a special proceeding by the filing of the notice of petition and petition with required fee]).

Finally, respondents seek dismissal on the basis that petitioner did not comply with the Good Cause Eviction Law (GCEL) [L 2024, ch 56, § 1, part HH]). However, the GCEL did not become effective until April 20, 2024 (see QN St. Albans Holdings LLC v Sands, 85 Misc 3d 275, 277 [Civ Ct, Queens County 2024]). Except for those provisions of the GCEL that became effective on August 18, 2024, by the plain terms of the law, it took "effect immediately and shall apply to actions and proceedings commenced on or after such effective date [April 20, 2024]." (L 2024, ch 56, § 1, part HH, § 7; see also Sands, 85 Misc 3d at 277). As noted above, the instant proceeding was filed on March 4, 2024, and service is alleged to have occurred upon filing of the affidavit of service of the notice of petition and petition on March 19, 2024 (see NYSCEF Doc. 4). Thus, even if commencement were tied to service, rather than filing (cf. Doc Realty Mgt. Inc., 85 Misc 3d 389, 390 [Civ Ct, Queens County 2024]), the proceeding was commenced before the effective date of the GCEL and the court does not find any indication of the plain language of the statute that the legislature intended for the law to be applied retroactively (see Riley v County of Broome, 95 NY2d 455, 463 [2000] ["[T]he words of the statute are the best evidence of the Legislature's intent."]; see also Thomas Jefferson Owners Corp. v Lokshin, 84 Misc 3d 549, 552 [Civ Ct, Queens County 2024]). Thus, the court does not find any basis for dismissal to exist based on purported noncompliance with the GCEL. Respondents' motion to dismiss is denied in its entirety upon the foregoing determinations.

Alternatively, respondents move for discovery upon their defense founded upon an alleged fraudulent scheme to deregulate the subject premises from rent stabilization. Petitioner opposes the motion for discovery in its entirety.

In this special proceeding governed by Article 4 of the CPLR, discovery may only be granted by leave of court upon showing of an ample need for disclosure (see CPLR § 408; Georgetown Unsold Shares, LLC v Ledet, 130 AD3d 99, 106 [2d Dept 2015]; Mautner-Glick Corp. v Higgins, 64 Misc 3d 16, 18 [App Term, 1st Dept 2019]; New York University v Farkas, 121 Misc 2d 643, 647 [Civ Ct, NY County 1983, Saxe, J]).

Typically, the assessment of ample need is grounded in the six factors enumerated by Judge David B. Saxe in Farkas: (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 carefully tailored and is likely to clarify the disputed facts; (4) whether prejudice will result from the granting of an application for disclosure; (5) whether the prejudice can be diminished or alleviated by an order fashioned by the court for this purpose; and (6) whether the court, in its supervisory role, can structure discovery so that pro se tenants, in particular, will be protected and not adversely affected by discovery requests (see Farkas, 121 Misc 2d at 647). More recently, some lower courts have also considered whether discovery "will speed a case towards a fair resolution, whether by stipulation or trial." (Temo Realty LLC v Herrera, 82 Misc 3d 299, 301 [Civ Ct, Kings County 2023] [citing 50th St. HDFC v Abdur-Rahim, 72 Misc 3d 1210[A], 2021 NY Slip Op 50693[U] [*4][Civ Ct, Kings County 2021] and 717 Sterling Corp. v Cook, 78 Misc 3d 1224[A], 2023 NY Slip Op 50345[U] [Civ Ct, Kings County 2023]]; see also 109th Affordable Hous. LLC v Beck, 2025 NY Slip Op 32735[U], *2 [Civ Ct, NY County 2025]).

Based upon amendments to the Rent Stabilization Law (RSL) and Rent Stabilization Code (RSC) in 2023 and 2024 (see L 2023, ch 760, § 1, part B, §2(a) and L 2024, ch 95, § 4), the legislature explicitly "permit[ted] review of an apartment's full rent history for the purposes of determining whether a deregulation was lawful, even if beyond the lookback period for establishing rent overcharges." (Cox v 36 S Oxford St, LLC, 237 AD3d 604, 605 [1st Dept 2025] [citing Liggett v Lew Realty LLC, 42 NY3d 415, 422 [2024]]; see also 167 8th Ave. LLC v Goldstein, 2025 NY Slip Op 25260, *2 [App Term, 1st Dept 2025]). Contrary to petitioner's position, "high rent" vacancy decontrol is not exempt from the amendments permitting the review of the rent history to assess whether an apartment was improperly deregulated (see Cox, 237 AD3d at 605; PWV Acquisition Owner LLC v Montes de Oca, 87 Misc 3d 133[A], 2025 NY Slip Op 51895[U], *1-2 [App Term, 1st Dept 2025]).

Respondents argue that petitioner improperly deregulated the subject premises, highlighting an increase appearing on the DHCR (New York Division of Housing and Community Renewal) rent history in 2002, whereby the rent was raised after a vacancy from $398.66 to $1,700.00 per month. Respondents also point to the lack of any showing as to how the rent was increased above the deregulation threshold after the last rent-stabilized tenant, Beth Gibson, had a registered rent of $1,812.03 in 2005. In opposition, petitioner annexes an affirmation from its agent, Parke Leatherman, who describes the increases, including individual apartment increases (IAIs) that led to the deregulation of the subject premises, as well as copies of leases and an affidavit from Xavier Yunga, a contractor allegedly involved in renovations of the subject apartment in July-August 2002.

Upon this record, the court finds that respondents have set forth a sufficient showing of "ample need" for certain documents related to the alleged deregulation of the subject premises. The 2023 and 2024 amendments to the RSL and RSC permit "the use of records of any age or type, going back to any date that may be relevant, for the purposes of determining the status of any apartment of the rent stabilization law." (L 2023, ch 760, part B, § 2(a); see also Cox, 237 AD3d at 605; Gomes v Vermyck, LLC, 238 AD3d 26, 37 [2d Dept 2025]). While evidence of the relevant increases annexed by petitioner, including leases and the contractor affidavit, are germane, the court finds that discovery will further clarify disputed issues and speed the proceeding towards a resolution under the standard incorporated in the RSL and RSC amendments (see Farkas, 121 Misc 2d at 647; Herrera, 82 Misc 3d at 301).

Accordingly, respondents' motion for discovery is granted to the following extent. Petitioner shall produce documents responsive to Numbers 1-10 (for the period from January 1, 2002 through July 31, 2005), and 14-15 (for the period from January 1, 2002 through July 31, 2005), and/or an appropriate Jackson affidavit for any appropriate items, in respondents' notice to produce to Justin Linn, Esq., no later than February 23, 2026.^[FN3] The court denies the remainder of the discovery motion as overly broad; however, respondents may seek to have trial subpoenas signed should the case proceed to trial.

Any party seeking discovery-related relief, including but not limited to a motion to compel or motion for discovery sanctions, must first seek a virtual discovery conference with the court by emailing [email protected].

The proceeding will be restored to the Part D calendar for discovery status and for all purposes on March 6, 2026 at 9:30 AM.

This Decision/Order will be filed to NYSCEF.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.