CARLYLE LLC v. Rafael Llopiz, et al., Nonparty Respondents. (2018)

Order Supreme Court, New York County (Joan M. Kenney, J.), entered January 10, 2017, which denied plaintiff's motion for summary judgment on its cause of action for use and occupancy against defendant Quik Park 1633 Garage LLC (QP 1633), unanimously affirmed, without costs.  Order, same court and Justice, entered March 6, 2017, which denied plaintiff's motion to compel QP 1633 and nonparties Rafael Llopiz, Citizens Icon Holdings, LLC, and Quik Park West 50th Street, LLC, to comply with postjudgment subpoenas, and granted Llopiz and defendants' cross motion for a protective order, unanimously affirmed, without costs.

Summary judgment on the cause of action for use and occupancy is precluded by issues of fact as to the nature of the use and occupancy, assuming that QP 1633 occupied the parking garage premises at issue, and whether the repairs undertaken by plaintiff constituted a partial actual eviction of QP 1633 from the premises (see 81 Franklin Co. v. Ginaccini, 160 A.D.2d 558, 559, 554 N.Y.S.2d 207 [1st Dept. 1990];  Union City Union Suit Co. v. Miller, 162 A.D.2d 101, 105, 556 N.Y.S.2d 864 [1st Dept. 1990], lv denied 77 N.Y.2d 804, 568 N.Y.S.2d 912, 571 N.E.2d 82 [1991] ).  Moreover, in the event it is determined that there was no partial actual eviction, it will be necessary to determine the value of the use and occupancy, which was not included in the assessment of damages for unpaid rent.

Plaintiff's postjudgment disclosure demands were overly broad (see Stern v. Carlin Communications, 210 A.D.2d 110, 620 N.Y.S.2d 344 [1st Dept. 1994];  CPLR 5223;  5224).  In addition to information related to the judgment debtors' assets, plaintiff improperly sought information related to the assets and operations of the non-judgment-debtors it subpoenaed.