715 v. LLC (2026)

Recitation, as required by CPLR § 2219(a), of the papers considered in the review of Petitioners' motion for leave to conduct discovery (mot. seq. 4): NYSCEF Doc. Nos. 98-106.

Upon the foregoing cited papers, the court's decision and order is as follows:

Petitioners, 35 tenants in a rent-stabilized multiple dwelling, along with an unincorporated tenant association, commenced the instant group Housing Part (HP) enforcement proceeding "for the sole purpose of compelling Owner-Respondents to meaningfully address and solve six building-wide problems" by Order to Show Cause and Petition dated August 29, 2025. Petitioners seek, among other things, corrective action with respect to recurring "boiler defects and inadequate heat and hot water outages" and "unsafe and frequently out of service elevators," which have been subject to violations issued by the Department of Buildings (DOB) and the Department of Housing Preservation and Development (HPD).

Petitioners now move for leave to conduct what they describe as "narrowly tailored discovery" in the form of seven interrogatories and ten documentary demands seeking information pertaining to the installation and service of the boiler and elevators, as well as communications related to system outages for the period of January 1, 2024, to the present. In support of the motion, Petitioners attach a DOB cease use order dated April 28, 2026, pertaining to one of the building's two elevators, each of which services a separate tower, for "unsafe service equipment" (NYSCEF 100), and refer the court to paragraph 70 of the Petition referencing prior DOB and HPD violations for boiler and elevator defects.

Respondents oppose the motion in its entirety, arguing that Petitioners cite "ZERO judicial precedent" authorizing discovery in HP proceedings, and that the only relevant information to be gathered in relation to the elevators and boiler is in the form of violation reports issued by DOB and HPD and other governmental records.

In special proceedings, which include both summary eviction proceedings (see RPAPL 701) and HP enforcement proceedings for an order to correct (see Civil Cout Act § 110[a][4] [conferring on the Housing Part jurisdiction over "proceedings for the issuance of injunctions and restraining orders or other orders for the enforcement of housing standards under such laws"] [emphasis added]; NYC Admin Code § 27-2115[k][1][ii] [authorizing HPD to "commence a proceeding for an order to correct" Code violations]; NYC Admin Code § 27-2115[h][1] [affording lawful occupants the same remedy]; Department of Hou. Pres. & Dev. of the City of NY v France, 73 Misc 3d [App Term, 1st Dept 2021] [describing such cases as a type of "Housing Part enforcement proceeding"]; Harvey v Miller Ave Group, LLC, 86 Misc 3d 133 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2025]; D'Agostino v Forty-Three E. Equities Corp., 16 Misc 3d 59 [App Term, 1st Dept 2007] [same]), pre-trial disclosure is only permitted by leave of court (see CPLR 408).

To justify discovery, the movant must demonstrate ample need (see 603 N.J. Ave., LLC v Hall, 74 Misc 3d 137[A] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]), an assessment that entails consideration of numerous non-dispositive factors, including "whether the party seeking discovery has asserted facts to establish a claim or defense; whether there is a need to determine information directly related to the claim or defense; whether the requested disclosure is carefully tailored and likely to clarify the disputed facts; whether prejudice will result from granting leave to conduct discovery; whether any prejudice caused by granting a discovery request can be diminished by an order fashioned by the court for that purpose; and whether the court, in its supervisory role, can structure discovery so that pro se tenants in particular will be protected" (Carr v Carr, 78 Misc 3d 135 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023], quoting Mautner-Glick Corp. v Higgins, 64 Misc 3d 16 [App Term, 1st Dept 2019], citing New York Univ. v Farkas, 121 Misc 3d 643 [Civ Ct, NY Co. 1983]).

Recently, several trial courts have emphasized in their analysis whether "discovery will aid in a more efficient resolution of the dispute" by providing otherwise inaccessible information to the moving party relevant to core claims and defenses prior to trial (50th St. HDFC v Abdur-Rahim, 72 Misc 3d 1210 [Civ Ct, Kings County 2021]) and, relatedly, the burden to the nonmoving party in terms of the cost of production and the attendant delay in prosecution of the proceeding, as well as whether the withholding of material information is merely an illegitimate means of "securing an unfair advantage" (id.; see also Kenwood Estates LLC v Schult, 2026 NY Slip Op 32175 [Civ Ct, New York County 2026]; Stahl Assocs. LLC v Cataldo, 2026 NY Slip Op 30085 [Civ Ct, New York County 2026]; Temo Realty LLC v Herrera, 82 Misc 3d 299 [Civ Ct, Kings County 2023]; 17 Sterling Corp. v Cook, 78 Misc 3d 1224 [Civ Ct, Kings County 2023]).

The Appellate Terms have likewise increasingly authorized relatively broad discovery in landlord-tenant proceedings, perhaps tacitly recognizing that such matters are rarely as expedited as they once were. For instance, in Bellstell 140 E. 56th St. LLC v Ferreira, 89 Misc 3d 129 (App Term, 1st Dept 2026), the Appellate Term for the First Department held that the respondent-tenant demonstrated ample need for discovery in the form of depositions of two employees in connection with a counterclaim for tenant harassment under the Housing Maintenance Code, a species of HP proceeding, alleging an unauthorized entry to the subject apartment, where the landlord denied knowledge of the employees' actions.

In 335 E. 70th Realty Inc. v Potente, 87 Misc 3d 127 (App Term, 1st Dept 2025), the Appellate Term affirmed a lower court order authorizing the deposition of two nonparty witnesses in a nuisance holdover, concluding that if the landlord intended to call the witnesses at trial, the interests of "fairness" dictated that they should be required to produce them in advance for pre-trial examinations.

In Lex & Third 116th St. Corp. v Vargas, 88 Misc 3d 133 (App Term, 1st Dept 2026), the Appellate Term reversed a lower court decision denying a tenant's motion for discovery in relation to a defense that the subject premises constituted a rent-stabilized horizontal multiple dwelling. The appellate court concluded that the tenant had established the "landlord possesse[d] particular knowledge of the ownership, management and other relevant factors related to the three buildings at issue, and in view of tenant's showing of some indicia of common facilities, ownership, management, and operation" there was ample need for discovery (id.).

And in Carr v Carr, 78 Misc 3d 135 (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023) the Appellate Term for the Second Department, wherein this court sits, reversed a lower court order denying a discovery motion in a holdover proceeding where the respondent asserted a deed theft defense. The proposed discovery demands, which sought a wide range of documentation with respect to the petitioner's claimed ownership of the premises, including, inter alia, "proof of payments for utilities at the subject premises," and all communications "between you and/or among members of your family members regarding the subject property" (see Carr v Carr, Civ Ct, Kings County, Index No. LT-86950-19/KI at NYSCEF 63-64), as well as a deposition of the petitioner, were in the Appellate Term's view "carefully tailored discovery to clarify these issues prior to trial with minimal prejudice to petitioner" (Carr, 78 Misc 3d at 135).

In comparison to the demands in Carr, Petitioners' discovery requests are far narrower and less burdensome. Petitioners are not seeking a deposition, but rather only responses to seven interrogatories eliciting information related to the installation and maintenance of the elevators and boiler, and limited related documentary evidence, all of which are outside of Petitioners' custody or control and not readily obtainable through other sources. The demands are plainly relevant to Petitioners' assertion that the elevators and boilers regularly fail in the building, which is supported not only be mere conjecture, but by evidence of a recent elevator cease use order and several prior DOB and HPD violations for both systems, and which is attested to by 35 separate tenants in the Petition.

Further, none of the information sought will require Respondents to incur significant costs, such as by hiring a third-party vendor to extract metadata or copy large volumes of material, as is often the case in more complex commercial disputes. Nor will Respondents suffer prejudice from the minimal delay caused by discovery, as this is not a summary eviction proceeding to recover possession of real property, but an HP enforcement proceeding in which it is the tenants seeking affirmative relief in the form of repairs to the building.

Finally, the court rejects Respondents' contention that the entire universe of relevant information pertaining to the building's boiler and elevators is contained in the files of the supervising agencies DOB and HPD, whom Petitioners have already subpoenaed. While agency inspection and maintenance records are certainly relevant, and the issuance of violations constitutes prima facie proof of the conditions stated therein (see MDL § 328[3]) [Department of Hous. Preserv. & Dev. Of City of New York v Joseph, 85 Misc 3d 137 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2025]; Department of Hous. Preserv. & Dev. Of City of New York v Omole, 47 Misc 3d 134 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]), Petitioners in an enforcement proceeding under Civil Cout Act § 110(a)(4) and the Housing Maintenance Code are entitled to offer evidence outside of violation reports to prove the existence of unsafe housing conditions (see NYC Admin. Code § 27-2115[h][1]). Furthermore, DOB and HPD inspections of elevators and boilers typically only assess operationality as observed on that day and do not necessarily identify sporadic but recurring outages or other systemic failures that are not always easily visible and may be indicative of the need for replacement of aging equipment rather than repair, as alleged in the Petition.

Accordingly, the court finds that Petitioners have demonstrated ample need for the discovery sought. The motion for leave to conduct discovery is granted. The proposed documentary demands and interrogatories are deemed filed and served and are to be responded to within 30 days. In addition, the court directs Respondents to provide a Jackson affidavit for any documentary evidence that may exist but that they are unable to locate after a diligent effort (see Jackson v City of New York, 185 AD2d 768, 770 [1st Dept 1992]).

The proceeding is hereby adjourned to October 13, 2026, at 930am for compliance purposes. This constitutes the decision and order of the court.

Dated: September 7, 2026

Brooklyn, New York

Hon. Logan J. Schiff, J.H.C.

Logan J. Schiff, J.