“Discovery” is generally where a party to a legal proceeding is required to provide the other party with documents and sit for a “deposition” to help that party prove its case. (It can also involve production of videotapes, medical examinations, inspection of premises, etc.) A “deposition” is where the attorney for the party conducting the deposition asks either the other party, or another person, questions that will help prove his client’s case. Both the documents and the questioning at a deposition can be very broad. The information elicited can be anything that either directly or indirectly leads to facts which help the party seeking discovery prove its claim. Discovery is very invasive, often requiring the production of hundreds of pages of documents including tax returns, bank records, credit card records, insurance records, wills, etc.

In general (in New York Civil Court or Supreme Court) discovery is “as of right” which means that a party does not have to ask the court’s permission to demand documents and a deposition. In Housing Court, however, a landlord has to show “ample need” for discovery, which requires making a motion to the court. Ample need requires six things: 1) whether the petitioner has asserted facts to establish a cause of action; 2) where there is need to determine information directly related to the cause of action; 3) whether the requested disclosure is carefully tailored and likely to clarify disputed facts; 4) whether prejudice will result from granting disclosure; 5) whether prejudice can be alleviated by an order of the court; 6) whether the court can structure discovery so that pro se tenants will be protected. These rules were first enunciated in the case of NYU v. Farkas in 1983. Despite the “ample need” standard, the Housing Court judges have so routinely granted discovery to landlords in “non-primary residence” cases that many tenant attorneys now simply consent to discovery before the landlord even makes a motion. (Tenants are also entitled to discovery in some cases, such as “owner’s use” proceedings.)

In a recent precedent setting case, where the tenant was represented by Samuel Himmelstein of HMGJ, however, one Housing Court judge denied discovery to a landlord in a non-primary residence case. In Ennismore v. Foster, the landlord alleged that the tenant, a rent-stabilized tenant in Manhattan, went by another name and lived in White Plains. The landlord also alleged that the tenant lived at two other addresses in Manhattan. Finally, the landlord alleged that its doormen saw the tenant leaving the apartment in the evening and coming home in the morning. The landlord moved for discovery. The tenant opposed the landlord’s motion for discovery and moved for summary judgment. In its cross-motion, the tenant argued that this was a case of mistaken identity, that he was never known by another name, that the other addresses in Manhattan were offices where he worked years ago and that the affidavits of the doormen were vague, conclusory and contradictory.

The court agreed with the tenant that the affidavits submitted by the landlord were vague, conclusory and contradictory and found that the landlord did not therefore state sufficient facts to show ample need warranting discovery. The court denied the landlords’ motion for discovery but also denied the tenant’s cross-motion for summary judgment, finding that there were factual issues in dispute.

The big question is whether the case will usher in a new period where Housing Court judges will not just routinely grant discovery to landlords in non-primary residence cases. That would greatly benefit tenants and reduce the number of holdover cases that are brought on flimsy grounds.

Samuel Himmelstein