251 CPW LLC v. David S. Singer, Respondent-Tenant-Respondent, and Aiden J. Bezark and Victoria P. Heinlein, Respondents-Undertenants-Respondents, and "John Doe" and "Jane Doe", Respondents-Undertenants. (2026)

Per Curiam.

Order (Shahabuddeen A. Ally, J.), entered September 9, 2025, insofar as appealed from, reversed, with $10 costs, tenant's cross-motion denied, petition reinstated and the matter remanded to Civil Court for a determination of landlord's motion for discovery.

Tenant's cross-motion for summary judgment dismissing this nonprimary residence holdover summary proceeding should have been denied as premature, since "landlord has not been afforded the opportunity to conduct discovery" (Cox v J.D. Realty Assoc., 217 AD2d 179, 180 [1995]; see 111 Realty Co. v Sulkowska, 21 Misc 3d 53, 2008 NY Slip Op 28402 [App Term, 1st Dept 2008]). The law recognizes a presumption in favor of discovery in summary proceedings commenced by the landlord on the basis of nonprimary residence (see Hughes v Lenox Hill Hosp., 226 AD2d 4, 18 [1996], lv denied 90 NY2d 829 [1997]; Cox v J.D. Realty Associates, 217 AD2d at 184), and landlord had demonstrated ample need for discovery regarding tenant's residence and use of the subject apartment that are peculiarly within tenant's knowledge (see Hughes v Lenox Hill Hosp., 226 AD2d at 18). In this regard, the pre-discovery record so far developed shows that tenant purchased a condominium in Los Angeles in 2020, registered a vehicle there, surrendered his New York plates and sublet the subject apartment at issue. Although the sublet request was approved by landlord, the subtenant refused to vacate and said subtenant submitted an affidavit indicating that other subtenants had occupied the premises prior to his occupancy and that tenant stated that he has been residing in California for a number of years. Thus, a summary disposition is not appropriate at this juncture; instead, this matter should be decided after the exchange of discovery (see ACP 150 W. End Ave. Assoc., L.P. v Greene, 83 Misc 3d 128[A], *1, 2024 NY Slip Op 50737[U] [App Term, 1st Dept 2024]).

Although we hold that landlord is entitled to discovery, the scope of the discovery should be decided in the first instance by Civil Court. We remand the matter accordingly.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: June 24, 2026