LLC v. ET AL (2024)

Recitation, as required by C.P.L.R. § 2219(a), of the papers considered in review of this motion.

Papers Numbered

Notice of Motion to (NYSCEF DOC. 43), With Affirmation (Doc. 44), and Exhibits (Docs. 45-48) 1

Affirmation in Opposition (Doc. 51) 2

After argument on November 1, 2024, and upon the foregoing cited papers, the decision and order on this motion is as follows:

RELEVANT FACTS AND PROCEDURAL POSTURE

In this matter, the petitioner claims the respondent does not primarily reside in the subject rent-stabilized apartment. The respondent disputes the claim. After respondent answered, petitioner moved for discovery and for use and occupancy pendente lite. Discovery was granted in part by Decision and Order dated October 26, 2023. (see NYSCEF Doc. 19); the request for use and occupancy was denied without prejudice. (see id). In February 2024, petitioner moved to strike the answer and preclusion for respondents' purported failure to comply with discovery—namely that respondent did not appear for a deposition. (see NYSCEF Doc. 28). Respondent cross-moved for dismissal for failure to state a cause of action. (see NYSCEF Doc. 34-35). The cross-motion was without merit and denied. Petitioner's motion was granted solely to the extent of ordering respondent to sit for a deposition. (see NYSCEF Doc. 38). Petitioner eventually served post-deposition discovery demands. (see NYSCEF Doc. 45). Respondent agreed to comply by July 31, 2024. (see July 2, 2024 stipulation at NYSCEF Doc. 42). Petitioner now moves to compel respondent to comply with the post-deposition demands and for an order requiring respondent to pay all accrued and ongoing use and occupancy pursuant to RPAPL 745(2).

Petitioner argues that an order to compel pursuant to CPLR 3124 is appropriate because respondent agreed, by stipulation, to comply with the post-deposition demands and failed to do so. Petitioner also argues that use and occupancy is properly awarded now because at least eighty-one (81) days in adjournments are attributable to respondent.

Respondent argues that the "compel" portion of the motion must be denied because it is not accompanied by a good-faith affidavit required by law. As to use and occupancy, respondent argues, in essence, that no adjournment days are chargeable to the respondent where the case has been adjourned by stipulation.

DISCUSSION

DISCOVERY & 22 NYCRR 202.7

Under 22 NYCRR 202.7, a motion relating to disclosure must be accompanied by an affirmation from moving counsel attesting that he or she has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion. (see Anuchina v Marine Transport Logistics, Inc., 216 AD3d 1126, 1127 [2nd Dept. 2023])). This rule is not absolute; under limited circumstances, the court may overlook the lack of such an affidavit. (see Northern Leasing Systems, Inc. V Estate of Turner, 82 AD3d 490 [1st Dept. 2011] (willful and contumacious refusal to cooperate with discovery process inferred from two years of non-compliance with three court orders and out of court requests); Loeb v Assara New York, I L.P., 118 AD3d 457, 458 [1st Dept. 2014] (record established that counsel attempted on numerous occasions, both in and out of court, to resolve the outstanding discovery issues with defendants before filing the motion)). The exception to 22 NYCRR 202.7 boils down to this--the affirmation requirement can be overlooked when further non-judicial efforts would be futile. (see Carrasquillo v Netsloh Realty Corp., 279 AD2d 334, 334 [1st Dept. 2001]; Diamond State Ins. Co. V Utica First Ins. Co., 67 AD3d 613, 613 [1st Dept. 2009]; Baulieu v Ardsley Associates, L.P., 84 AD3d 666, 666 [1st Dept. 2011]).

In Diamond State Ins. Co., for example, further efforts were deemed futile "in light of [the] defendant's multiple delays and violations of repeated court orders, its numerous improper objections to practically every demand for disclosure made by [the] plaintiff, its unjustifiable limitation of the search of its files, its continued refusal to produce responsive documents and its utter failure to account for its behavior" (67 AD3d at 613).

Here, there is no attorney affirmation whatsoever, much less one that alleges movant has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion and that further efforts would be futile. Nor does the record otherwise establish that further discussions between the parties would be futile. Indeed, while petitioner previously made a motion to compel respondent to appear for a deposition, it was never established that the one missed deposition date was purposeful. In any event, petitioner concedes that respondent was deposed. The post-deposition demand in controversy now requests credit card and bank records. Respondent's counsel represents that documents are available electronically but that they are inaccessible due to password protections. While it appears that respondent will ultimately have to produce these documents or face the consequences, the parties should be conferring to solve the current problem. This is what 22 NYCRR 202.7 envisions. Consequently, this portion of petitioner's motion is denied.

USE & OCCUPANCY

Petitioner concedes that RPAPL 745(2) governs an award of use and occupancy. (see NYSCEF Doc. 44, par. 10). That section reads, in relevant part, as follows: "In a summary proceeding upon the second of two adjournments granted solely at the request of the respondent, or, upon the sixtieth day after the first appearance of the parties in court less any days that the proceeding has been adjourned upon the request of the petitioner, counting only days attributable to adjournment requests made solely at the request of the respondent and not counting an initial adjournment requested by a respondent unrepresented by counsel for the purpose of securing counsel, whichever occurs sooner, the court may, upon consideration of the equities, direct that the respondent, upon a motion on notice made by the petitioner, deposit with the court sums of rent or use and occupancy that shall accrue subsequent to the date of the court's order, which may be established without the use of expert testimony."

While this case has no doubt been pending for quite some time, petitioner does not identify which, if any, adjournments can be considered "solely" at the respondent's request. Petitioner suggests that the May 23, 2023 adjournment to July 5, 2023 and the July 2, 2024 adjournment to August 7, 2024 ought to count against respondent. However, as petitioner stipulated to both adjournments without reservation (i.e. no language charging the adjournments to the respondent), these days cannot count against the respondent. (see e.g. Myrtle Venture Five, LLC v Eye Care Opt. Of NY, Inc., 48 Misc 3d 4 [App Term, 2nd Dept. 2015]; Ash Ave LLC v Wilder, 8 Misc 3d 1208(A), 5 [Civ Ct, Queens County 2024]; 1747 Associates, LLC v Raimova, 56 Misc 3d 1216(A), 1 [Civ Ct, Kings County 2017] (where a landlord and tenant consent to an adjournment, their agreement, to the extent subject to the approval of the court, is appropriately considered a request by both parties to the court for the adjournment. It is therefore excludable from the ...days upon the passage of which a rent deposit is to be ordered, as the statute expressly exempts days requested by the petitioner) [citations omitted]). As such, this portion of petitioner's motion is denied.

CONCLUSION

Based on the foregoing, petitioner's motion is denied in its entirety without prejudice. The parties should attempt to resolve outstanding discovery issues by December 31, 2024. The matter is scheduled for conference on January 22, 2025, at 9:30 AM. Any appropriate motion may be made returnable at that time. This constitutes the Decision of the court. It will be posted on NYSCEF.

Dated: November 22, 2024

Bronx, New York

SO ORDERED,

HON. SHORAB IBRAHIM

Judge, Housing Part

Shorab Ibrahim, J.