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Theodoli v. 170 East 77th 1 LLC

April 13, 2009

AGNESE INES THEODOLI & PHILIPS H. CLARKE, III
v.
170 EAST 77TH 1 LLC, ET AL.,



The opinion of the court was delivered by: Doris Ling-Cohan, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

In this motion to compel, plaintiffs have raised a novel issue as to whether a party is required to disclose all documents it intends "to introduce or rely upon at trial", prior to trial.

Background

Plaintiffs were tenants in Apartment 10D ("premises") at 170 East 77th Street, New York, New York ("the building"), from January 2004 through October 2007. On or about July 2007, plaintiffs commenced this mold/personal injury action, asserting four causes of action against defendants: 1) breach of an implied warranty of habitability; 2) negligence; 3) retaliatory eviction; and 4) attorneys' fees, costs and expenses. Plaintiffs claim that defendants intentionally, willfully, and maliciously breached their duties to plaintiffs. [Notice of Supplemental Motion to Compel ("Motion"), Hagemeier Aff. at No.4]. Plaintiffs seek compensatory and punitive damages for each of their claims.

After a discovery conference held on August 8, 2008, this court ordered the production of "documentation as to communications between any tenants/unit owners of the D' line of the subject building and defendants regarding leaks/mold in their respective units". [Motion, Exh. E, at #19].

Motion to Compel

Plaintiffs have filed the within motion seeking to compel the production of the "documentation as to communications between defendants and any tenant and/or owner of a unit", applied to the entire 56-unit building, from January 2002, to date. [Notice of Motion at 1]. Plaintiffs also seek to compel the production of documents that defendants intend to introduce at the trial of this action.

Disclosure of Landlord-Tenant Communications

CPLR §3103(a) provides for broad disclosure stating, "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action." The statutory language has come to mean "relevant". Siegel, NY Prac, §344, at 550 (4th ed).

Plaintiffs allege, under their implied warranty of habitability and retaliatory eviction claims, that defendants dealt with plaintiffs with willful and malicious intent. As such, plaintiffs argue that defendants' responses to complaining tenants in the entire building would be probative of intent. (Motion, Hagemeier Aff. at #20). Plaintiffs further state that this disclosure would help determine defendants' state of mind (Reply Affirmation, at #14).

Defendants object to this disclosure request due to its burden on defendants and the irrelevance of the documents sought. On consent, defendants have already supplied to plaintiffs documentary discovery with respect to landlord-tenant communications regarding leaks for the "D" line of apartments. The apartment at issue is on such line. Defendants maintain that to provide such disclosure for the rest of the apartment complex would require a week's worth of file review (Opposition Affirmation, at #8). Defendants further claim that the disclosure requested is irrelevant to this case.

In support of their motion, plaintiffs fail to provide case law specifically on point with respect to their novel arguments as to the intent and state of mind of the landlord*fn1. Moreover, the retaliatory eviction statute makes no mention of intent or state of mind (See McKinney's Real Property Law 223-b). Similarly, the warranty of habitability statute does not look to intent or state of mind (See McKinney's Real Property Law 235-b). Rather, the focus is on the specific conditions present in the subject premises. See Park West Management Corp. v. Mitchell, 47 NY2d 316 (1979); Poyck v. Bryant, 13 Misc 3d 699 (Civ Court, New York County 2006).

Since willful and malicious intent are not elements of retaliatory eviction and a warranty of habitability claim, defendants' records allegedly indicating defendants' state of mind are not relevant to this case. Further, to the extent plaintiffs claim retaliation, as noted by plaintiff Clarke in his Affidavit, the couple who moved into their old apartment "continued to have these problems" [¶ 10]. While plaintiff, in a cursory fashion, indicates that others in the building have "experienced leaks", no affidavits from these tenants have been provided, but nonetheless six years' worth of documentation for every apartment in the building is requested. [¶ 12, Phillips H. Clarke III Affidavit]. Moreover, while the landlords' communications ...


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