Respondent moves for leave to conduct disclosure in this summary holdover proceeding. To prove her defense of illusory tenancy, respondent seeks to depose the principal of the landlord corporation and a member or agent of the owner of the building who is most familiar with the building's affairs. Respondent seeks to examine all leases, renewals, rent logs, correspondence, notices, court papers, and documents related to apartments 5A and 5B at 157 Allen Street in New York County. Respondent also requests documents relating to the disputed identity of the landlord.

In support of her motion, respondent asserts that petitioner has knowledge and documents helpful to show she has tenancy rights to apartment 5B because Mei Mei Chang, the record tenant, is allegedly an illusory tenant.

Respondent contends that she has occupied the premises since November 1993, that she is the lawful rent-stabilized tenant, and that the record tenant, Mei Mei Chang, also known as Mei Mei Chan, is an illusory tenant. Respondent alleges that petitioner knew that respondent paid monthly rent to a "Mrs. Chan," the individual named as the landlord in respondent's lease from 1994. Mrs. Chen might be Mei Mei Chang, but the court does not know. Respondent alleges that she paid electricity bills for apartment 5B to Mrs Chan and that Mrs. Chan overcharged on the rent for the unit. Respondent also alleges that Mrs. Chan did not reside in apartment 5B. Petitioner opposes respondent's motion to disclose because respondent had not produced documentation to support her allegations that Mei Mei Chang is an illusory tenant, but respondent in reply produced documents like the original sublease agreement. Respondent has demonstrated a plausibly meritorious claim and ample need for disclosure properly tailored to the case. The motion for leave to conduct disclosure is therefore granted. [*2]

Disclosure in a summary proceeding is available only at the court's discretion. (225 W. 88th Co. LLC v Gelband, NYLJ, Jan. 5, 2005, at 20, col 1 [Hous Part, Civ Ct, NY County] [granting disclosure to the respondent in illusory-tenancy case].) Leave of the court is required to obtain disclosure in summary proceedings. (Jerulee Co. v Ang, NYLJ, Sept. 10, 1997, at 26, col 2 [Hous Part, Civ Ct, NY County] [granting discovery after respondent demonstrated a defense related to illusory tenancy and a need to determine information related to that defense].) The court may allow necessary disclosure in illusory-tenancy situations. (545 Eighth Ave. Assocs., L.P. v Shanaman, 12 Misc 3d 66, 68 [App Term, 1st Dept 2006 per curiam] [granting disclosure after respondent demonstrated that prime tenants engaged in unlawful profiteering after vacating premisses]; 125 Church St. Dev. Co. v Grassfield, 170 Misc 2d 31, 33 [Hous Part, Civ Ct, NY County 1996] [noting that in illusory-tenancy cases, requests for disclosure should be reviewed liberally].) Disclosure is necessary "where the movant demonstrates a meritorious claim, [where] ample need [for disclosure exists], [where] the discovery sought is tailored to the facts of the case, and [where] no prejudice [exists] to petitioner." (Gelband, NYLJ, Jan. 5, 2005, at 20, col 1].)

A meritorious illusory-tenancy claim can be demonstrated by several indicia. The First Department has held that an illusory tenancy is present when a "residential leasehold [is] created in a person who does not occupy the premises for his or her own residential use and subleases it for profit." (Partnership 92 LP v NY St. Div. of Hous. & Community Renewal, 46 AD3d 425, 429 [1st Dept 2007].) New York courts have also considered the extent of the prime tenant's dominion and control over the premises. (E.g. Art Omi, Inc. v Vallejos, 15 Misc 3d 870, 875-876 [Hous Part, Civ Ct, NY County 2007].) Another consideration is whether the "subtenant reasonably expected to continue in possession indefinitely as a rent regulated tenant when the sublease ends." (Id.) Also relevant is whether the landlord or its agents knew whether parties other than the prime tenant were residing in the premises for a substantial period of time. (Envoy Towers Assocs. v Dias, 15 Misc 3d 1104[A], 836 NYS2d 498, 2006 WL 4128463, at *3, 2006 NY Slip Op 5283[U], *4, 2006 NY Misc LEXIS 4203, at *8-9 [Hous Part, Civ Ct, NY County 2006], citing Primrose Mgt. v Donahue, 253 AD2d 404, 405-406 [1st Dept 1998 mem].)

The disclosure respondent seeks is appropriate. Respondent has a plausibly meritorious defense of illusory tenancy because the parties' dispute relates to rent payments for apartment 5B and because of the ambiguities regarding the parties' relationships to each other. (See 270 Riverside Drive, Inc. v Wilson, 195 Misc 2d 44, 50 [Hous Part, Civ Ct, NY County 2003].) In Wilson, the court noted that the hallmark of illusory-tenancy is a subtenancy set up to profit improperly by violating the rental laws. (Id.) According to Division of Housing and Community Renewal records, Mei Mei Chang has been the registered tenant of 5B since 1994. Apartment 5B is a three-bedroom unit with several occupants residing in each bedroom. Respondent asserts that Mrs. Chan rented each room in apartment 5B to multiple occupants, including respondent. On October 28, 1994, respondent signed an agreement with Mrs. Chan by which respondent agreed to pay rent for apartment 5B for one year at $1000 a month, a sum that exceeded the legal rent for the apartment. Each occupant shared the rent for the apartment. Respondent alleges that she collected these rental payments from the other occupants of apartment 5B. [*3]

Respondent alleges that she gave the rent to Mrs. Chan — the person she believed was or is the landlord or related to the landlord — in apartment 5A. Respondent also contends that in 2001, Mrs. Chan departed to China and that respondent paid rent to Mrs. Chan's daughter. Respondent claims that Mrs. Chan's daughter resides in apartment 5A.

Joseph Schwartz alleges in an affidavit petitioner submitted that he is the current occupant of apartment 5A. Schwartz denies that anyone paid rent for apartment 5B to an occupant of 5A and states that he lives in apartment 5A with his wife and child. Respondent and Jin Shu Sun, one of the occupants of apartment 5B, assert that Schwartz's wife is Mrs. Chan's daughter and that Mrs. Chan's daughter continued to collect rent payments after Mrs. Chan allegedly left for China in 2001.

Whether Mrs. Chan's daughter collected rent from respondent for apartment 5B is unclear. Respondent alleges that she saw Schwartz and Mrs. Chan's daughter together in the building's hallway. Respondent also asserts that Mrs. Chan told respondent to pay rent to her daughter when Mrs Chan left for China, and respondent claims she paid rent to Mrs. Chan's daughter for seven years. Also unclear is whether Mrs. Chan resides in apartment 5A, or is in China. Schwartz asserts that he has never met respondent. Respondent, however, avers that Schwartz knows who she is because Schwartz helped her when she was locked out of her apartment at 157 Allen Street. Respondent seeks to clarify whether Schwartz knows of Mrs. Chan, knows the rent payments, and knows who Schwartz's unnamed wife is: Mei Mei Chan, Mrs. Chan, or another individual. Granting disclosure would resolve and clarify the relationship between the parties.

Respondent demonstrates ample need for disclosure. Ample need exists when "a need to determine information [is] directly related to the cause of action." (New York Univ. v Farkas, 121 Misc 2d 643, 647 [Hous Part, Civ Ct, NY County 1983].) Respondent seeks to depose petitioner because petitioner might have documents about respondent's occupancy and the supposedly illusory nature of Mrs. Chan's tenancy. Respondent's need for petitioner's documents directly relates to whether respondent has tenancy rights.

Disclosure is granted when the information sought is within the other party's knowledge. (Grassfield,170 Misc 2d at 33.) Petitioner is in sole possession of the information about respondent's claims. Petitioner most likely retains records of tenancies in its building. Petitioner's documents might show whether it was aware of rent payments to Mrs. Chan.

Petitioner argues that respondent's requests are overly broad, but respondent's disclosure request is tailored to the facts of this case. Respondent seeks correspondence and papers regarding the tenants or occupants of apartments 5A and 5B, rent payments, photographs and videos of respondent's presence in the building, maintenance records for both apartments, and closing records for the transfer of the property to the ownership of the premises. Respondent has limited her requests to documents relating to apartments 5A and 5B. The records respondent seeks might show whether petitioner knew about the occupancy agreement between respondent and Mrs Chan. Records relating to apartment 5A are necessary for respondent to determine the identity of Schwartz's wife, whether apartment 5B's rent was collected by apartment 5A, and to [*4]whom Schwartz paid rent for apartment 5A. Respondent does not request information for every apartment in the entire building or any personal information about the tenants of 5A.

Petitioner will not be prejudiced unduly by this court's granting respondent's motion for disclosure. The delays to petitioner are outweighed by the need for disclosure to respondent. And the delays that will arise from the disclosure process might be mitigated because disclosure might speed disposition by clarifying trial issues.

This proceeding is marked off calendar pending disclosure.

This opinion is the court's decision and order.

Dated: June 26, 2008

J.H.C.