In a summary nonpayment eviction proceeding commenced against a residential tenant who had failed to pay rent for over a year, the tenant’s attorney sought leave to conduct discovery of documents and correspondence related to a misplaced defense, asserting that the building’s owner was barred from collecting rent for the duration of time the building was covered by temporary certificates of occupancy. Through a careful explanation of both the necessary threshold the tenant must meet to obtain leave to conduct discovery and the statutory interplay of various provisions of the Multiple Dwelling Law, we obtained a decision that not only denied the tenant leave to conduct discovery, but also eliminated the tenant’s defense concerning the building’s temporary certificates of occupancy.

Although litigants in an action commenced in the New York State Supreme Court are entitled to conduct discovery as a right, litigants in a summary proceeding do not share the same privilege. Rather, the automatic expectation that the parties will engage in an exchange of documents and sit for depositions is viewed as antithetical to the “summary” nature of a summary proceeding. As a result, to the extent a party does seek the production of documents, that party must, by way of a written motion, obtain the court’s permission by demonstrating that they have “ample need” for the requested disclosure and that the proposed demand for desired documents is “narrowly tailored” so as to only seek documents germane to the claim and/or defense for which the movant has demonstrated “ample need.”

Here, the tenant’s attorney argued that leave to conduct discovery was necessary to determine the landlord’s right to collect rent from the tenant because, for a portion of the period for which rent was sought, the Department of Buildings had not yet issued a permanent certificate of occupancy for the building. Instead, during the period in question, the building was covered by a series of temporary certificates of occupancy. The tenant’s attorney, relying in part on case law concerning the interim multiple dwellings (a/k/a “Loft” buildings) and the legalization milestones applicable thereto, asserted that production of all documents and correspondence with the Department of Buildings relating to the issuance of the various temporary certificates of occupancy and the permanent certificate of occupancy was necessary.

We successfully opposed the motion by arguing that the tenant failed to demonstrate the requisite “ample need” because the applicable provisions of the Multiple Dwelling Law did not operate to bar the landlord from collecting rent during the period that the building was covered by temporary certificates of occupancy. In short, we argued that while the language of Multiple Dwelling Law § 302 (1) provides that a landlord is precluded from recovering rent for any period during which the building is occupied in violation of Multiple Dwelling Law § 301 (1), Multiple Dwelling Law § 301 (1) provides only that a building cannot be occupied before the Department of Buildings issues “a certificate” that the building “conforms in all respects to the requirements” of the Multiple Dwelling Law. Further, Multiple Dwelling Law § 301 (4) provides that the commissioner of the Department of Buildings may “issue a temporary certificate of compliance or occupancy” certifying that the building “complies with all the requirements” of the Multiple Dwelling Law. Reading those provisions in tandem, the Multiple Dwelling Law provides that a temporary certificate of occupancy issued pursuant to Multiple Dwelling Law § 301 (4) satisfies the requirements of Multiple Dwelling Law § 301 (1), thereby relieving the landlord from any prohibition against recovering rent contained in Multiple Dwelling Law § 302 (1).

The judge agreed with our interpretation of the Multiple Dwelling Law and issued a favorable decision denying the tenant leave to conduct discovery. However, the judge did not stop there. Rather, she further adopted our reasoning into her decision and found that the landlord was, indeed, entitled to recover rent for all periods the building was covered by a temporary certificate of occupancy. This resulted in not only the denial of the tenant’s motion for leave to conduct discovery, but further eliminated the tenant’s defense to the payment of rent, thereby circumventing any future motion practice relating to that defense and permitting the landlord to proceed unfettered by the tenant’s attempts to excuse her failure to satisfy her end of the leasehold bargain.

Andrew D. Cassady from Adam Leitman Bailey, P.C. represented the client.