Preview
FILED: KINGS COUNTY CLERK 08/15/2022 10:31 AM INDEX NO. 507079/2020
NYSCEF DOC. NO. 332 RECEIVED NYSCEF: 08/15/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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OPERA HOUSE LOFTS LLC, :
: Index No.: 507079/2020
Plaintiff-Landlord, :
: AFFIRMATION IN
- against - : OPPOSITION TO
: MOTION TO QUASH
CHRISTOPHER CARHAHAN, ET AL., :
:
Defendants-Tenants. :
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ANDREW D. CASSADY, an attorney duly sworn to practice before the courts of this
State, hereby affirms, under penalty of perjury, the truth of the following:
1. Your affirmant is associated with the law firm of WEEN & KOZEK, PLLC, attorneys
for Defendants-Tenants RYAN SHOLLENBERGER (Unit 105), CELINA VICIOSO (Unit 107),
MICHAEL CHESBRO (Unit 108), TATIANA REID (Unit 109), PIYA MALIK (Unit 111), LAURA
NEWMAN (Unit 113), DIANA OSORIO (Unit 114), KELSEY FAIRHURST and BRYANT
WELLS (Unit 115), SHANNON LUMPKIN (Unit 116), JESSICA MÜLLER a/k/a JESSICA
MILLER (Unit 206), GAVIN KOEPKE and SARA LABRIOLA (Unit 209), JEWEL PAULA
SMITH, JORDAN SMITH and HELLEN SMITH a/k/a SHARAHYA CARTER (Unit 210),
HECTOR MARCEL a/k/a HECTOR MALACARIA (Unit 211), DANIEL MCINERERY,
RICHARD EINHORN, ARI FINKEL and MICHAEL RALSTON (Unit 212), RYAN
SCHWEIZTER and MOLLY WYPYSKI (Unit 213), SYLVIE WISE (Unit 214), KENDALL
PAYNE (Unit 301), MUTAURWA MAPONDERA (Unit 302), SUBANITA SUWAN (Unit 305),
CASEY-LEIGH JORDAN a/k/a CASSANDRA L. EMMETT (Unit 306), ALEX REGEN a/k/a
ALEX REGEN (Unit 309), BETHANY REEVES (Unit 315), JAKA VINSEK (Unit 401),
CAROLINE SILVERMAN and WILLIAM KLIMPERT (Unit 402), BETH MORGAN and DAVID
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RICHTER (Unit 403), DAVID CALL (Unit 405), RICHARD MAGUIRE (Unit 406), DANA
CATALDO (Unit 410), CHELSEA SPENCER and JOHANNES STAUDT (Unit 413), JOSH
REAMES and AMBER RENAYE (Unit 414), and ZACHARY PLESS (Unit 415) (collectively,
“Defendants”) in this action. As such, I am fully familiar with the facts and circumstances set forth
herein.
2. This affirmation is respectfully submitted in opposition to the motion of Plaintiff
OPERA HOUSE LOFTS LLC (“Plaintiff”) seeking, inter alia, to quash the nonparty subpoena served
upon Bricolage Architecture & Design, PLLC, by Harry Radusky, A.I.A. in this action.
3. For the reasons set forth below, it is respectfully submitted that Plaintiff’s motion
should be denied in its entirety.
I. PRELIMINARY STATEMENT
4. This action concerns the building known as the Opera House Lofts and located at 11-
27 Arion Place, Brooklyn, New York, Tax Block/Lot: 3136/40 (the “Building”).
5. Plaintiff commenced this action seeking, inter alia,a declaratory judgment that the
certificate of occupancy issued for 9 Arion Place, Brooklyn, New York, Tax Block/Lot: 3136/48 on
February 22, 2005 (the “Adjacent Lot CO”) applied to the Building since its issuance, together with
monetary judgments against Defendants for rents withheld pursuant to Multiple Dwelling Law
(“MDL”) § 302.
6. On or about November 3, 2021, the Court issued an Order and Declaratory Judgment
that sua sponte granted Plaintiff summary judgment on its first cause of action and declared that the
Adjacent Lot CO was retroactively applicable to the Building.
7. Thereafter, on or about February 10, 2022, Defendants interposed an answer in this
action.
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8. With respect to Plaintiff’s cause of action for monetary judgments for withheld rent –
now predicated upon the Order and Declaratory Judgment’s retroactive application of the Adjacent
Lot CO to the Building – Defendants interposed defenses pursuant to MDL § 302 asserting that the
Building, as built and presently configured, fails to comport with the Adjacent Lot CO and the plans
pursuant which the Adjacent Lot CO was issued.
9. In connection with Defendant’s MDL § 302 defenses, on July 11, 2022, Defendants
served a subpoena duces tecum and ad testificandum upon Bricolage Architecture & Design, PLLC,
by Harry Radusky, A.I.A. (the “Nonparty”) 1 seeking, inter alia,the production of Department of
Buildings filings, architectural plans, drawings, designs, schematics, contracts and correspondence
relating to the Building and the Adjacent Lot CO.
10. On or about August 2, 2022, Plaintiff brought this motion by order to show cause
seeking, inter alia, to quash the Subpoena.
11. Notably, to date, the Nonparty has failed to object and/or otherwise respond to the
Subpoena.
12. At any rate, Plaintiff’s motion must be denied in its entirety. As stated in further detail
below, the Subpoena was properly issued, properly served and properly seeks disclosure that is
material and necessary to Defendants’ MDL § 302 defenses in this action. Moreover, to the extent
Plaintiff seeks to construe the Subpoena as “utterly irrelevant to any proper inquiry,” Plaintiff fails to
acknowledge the extant issues in this action as to whether or not MDL § 302 bars Plaintiff from
collecting rent from Defendants because the Building, as built and as it exists today, fails to comport
with the Adjacent Lot CO. Finally, to the extent Plaintiff seeks to quash the subpoena on the grounds
that Plaintiff did not receive a copy thereof contemporaneous with service, it is respectfully submitted
that Plaintiff received adequate notice to bring this motion to quash prior to Defendants obtaining
1The Nonparty is the architect responsible for obtaining the Adjacent Lot CO.
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any disclosure pursuant to the Subpoena. As such, Plaintiff was not prejudiced or otherwise denied
any process in this action.
II. FACTS AND PRIOR PROCEEDINGS
13. As noted above, the Building is located at 11-27 Arion Place, Brooklyn, New York,
Tax Block/Lot: 3136/40. Adjacent to the Building is an undeveloped lot located at 9 Arion Place,
Brooklyn, New York, Tax Block/Lot: 3136/48 (the “Adjacent Lot”).
14. On or about February 22, 2005, the Department of Buildings (the “DOB”) issued a
certificate of occupancy under CO Number 301247327 for the Adjacent Lot (i.e.,9 Arion Place,
Brooklyn, New York, Tax Block/Lot: 3136/40) (the “Adjacent Lot CO”). See NYSCEF Doc. No.
285 - Adjacent Lot CO.
15. Thereafter, on or about April 2, 2020, Plaintiff filed a “no work” Alt-1 application with
the DOB under DOB Job No. 322033624 seeking to transfer the Adjacent Lot CO to the Building. See
NYSCEF Doc. No. 286 - 2020 Alt-1 Application.
16. Rather than transfer the Adjacent Lot CO to the Building, on or about September 21,
2020, the DOB issued a new certificate of occupancy for the Building under Certificate of Occupancy
No. 322033624F (the “New Building CO”). See NYSCEF Doc. No. 287 - New Building CO.
17. Following the DOB’s issuance of the New Building CO (effective September 21,
2020), Plaintiff commenced this action seeking, inter alia, a declaratory judgment that the Adjacent Lot
CO (effective February 22, 2005) applied to the Building since the date of its issuance.
18. On or about March 15, 2021, Defendants brought a motion seeking dismissal of this
action in its entirety because, inter alia, the DOB was a necessary party to Plaintiff’s cause of action for
a declaratory judgment.
19. Thereafter, on or about July 23, 2021, this Court issued an interim order adjourning
Defendants’ motion to dismiss and directing Plaintiff “file and serve a Third Amended Complaint,
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adding the New York City Department of Buildings as a party defendant and asserting the First Cause
of Action, for declaratory judgment, against the NYC Department of Buildings, not the tenants.” See
NYSCEF Doc. No. 294 - Interim Order.
20. On or about August 16, 2021, Plaintiff filed a third amended complaint naming the
DOB as a defendant. See NYSCEF Doc. No. 295 - Third Amended Complaint with Supplemental
Summons
21. Thereafter, on or about September 22, 2021, the DOB brought a pre-answer motion
to dismiss this action as against the DOB for failure to state a cause of action for declaratory judgment.
See NYSCEF Doc. No. 296 - DOB Notice of Motion.
22. On or about September 24, 2021, this Court issued a short form order, inter alia,
denying as moot Defendants’ motion to dismiss for failure to name a necessary party and granting the
DOB’s motion to dismiss to the extent of directing Plaintiff “to settle an order directing NYC DOB
to correct the Certificate of Occupancy, on notice.” See NYSCEF Doc. No. 297 - Short Form Order.
23. Thereafter, on November 3, 2021, the Supreme Court issued the Order and
Declaratory Judgment, pursuant to which Plaintiff’s “first cause of action for a declaratory judgment
that the [Adjacent Lot CO] issued on February 22, 2005 is valid and applicable to the building located
at 11-27 Arion Place, Brooklyn, New York on Block 3136, Lot 40, and that as such, the Building had
a valid residential certificate of occupancy since the issuance of same” was granted. See NYSCEF
Doc. No. 298 - Order and Declaratory Judgment.
24. In other words, in the context of determining the DOB’s pre-answer motion to dismiss
Plaintiff’s complaint as against the DOB, this Court sua sponte granted Plaintiff summary judgment on
its first cause of action.
25. Following the issuance of the Order and Declaratory Judgment, the DOB revoked the
New Building CO and modified the Adjacent Lot CO to be applicable to the Building as of February
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22, 2005. See NYSCEF Doc. No. 299 - Revoked New Building CO; see also NYSCEF Doc. No. 300 -
Modified Adjacent Lot CO.
26. On February 10, 2022, Defendants interposed an answer to Plaintiff’s third amended
complaint. See NYSCEF Doc. No. 301 - Answer to Third Amended Complaint.
27. Thereafter, on February 28, 2022, this Court issued a preliminary conference order
directing the parties to proceed with disclosure. See NYSCEF Doc. No. 193 - Order - Preliminary
Conference.
28. On or about April 25, 2022, Plaintiff brought a motion seeking, inter alia,summary
judgment on its cause of action for a monetary judgment for rent withheld by Defendants. See
NYSCEF Doc. No. 197 - Notice of Motion.
29. Defendants opposed the motion on the grounds, inter alia, that Plaintiff is barred by
MDL § 302 from collecting rent from Defendants because the Building, as built and as it exists today,
fails to comport with the Adjacent Lot CO. See NYSCEF Doc. No. 253 - Affirmation in Opposition
to Motion for Summary Judgment.
30. Plaintiff’s motion for summary judgment was marked “fully submitted” on June 10,
2022 and remains sub judice.
31. On or about July 11, 2022, the Nonparty was served with the Subpoena. Annexed
hereto as Exhibit A is a copy of the Subpoena with affidavit of service.
32. Thereafter, Plaintiff brought this motion seeking, inter alia, to quash the Subpoena.
33. As noted above, to date, the Nonparty has not objected and/or otherwise responded
to the Subpoena.
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III. THE SUBPOENA IS VALID UNDER THE STANDARD SET FORTH
BY THE COURT OF APPEALS IN KAPON V. KOCH AND SHOULD
NOT BE QUASHED
34. On April 3, 2014, the Court of Appeals issued a decision in Kapon v. Koch, 23 NY3d
32, 988 NYS2d 559 (2014) which set forth the standard under which a nonparty disclosure may be
compelled by subpoena and abrogated all prior, inconsistent decisions.
35. In Kapon v. Koch, the Court of Appeals affirmed the denial of a nonparty’s motion to
quash a subpoena served upon it. There, John Kapon, a New York resident, commenced a special
proceeding to quash a nonparty subpoena served upon him by William Koch in connection with an
action in California wherein Koch asserted fraud by virtue of counterfeit wine. Id. at 35. The Supreme
Court denied the motion to quash, and the Appellate Division affirmed. Id.
36. On appeal, the Court of Appeals concluded that:
[T]he material and necessary standard adopted by the First and Fourth
Departments is the appropriate one and is in keeping with this state’s
policy of liberal discovery. The words material and necessary as used
in [CPLR] section 3101 must be liberally interpreted to require
disclosure, upon request, of any facts bearing on the controversy which
will assist preparation for trial by sharpening the issues and reducing
delay and prolixity. Section 3101 (a) (4) imposes no requirement that
the subpoenaing party demonstrate that it cannot obtain the requested
disclosure from any other source. Thus, so long as the disclosure
sought is relevant to the prosecution or defense of an action, it must
be provided by the nonparty.
Id. at 38 (internal citations and quotations omitted) (emphasis added).
37. The Court of Appeals further held:
An application to quash a subpoena should be granted only where the
futility of the process to uncover anything legitimate isinevitable or
obvious or where the information sought is utterly irrelevant to any
proper inquiry. It is the one moving to vacate the subpoena who has
the burden of establishing that the subpoena should be vacated under
such circumstances.
Although the nonparty bears the initial burden of proof on a motion
to quash, section 3101 (a) (4)’s notice requirement nonetheless
obligates the subpoenaing party to state, either on the face of the
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subpoena or in a notice accompanying it, the circumstances or reasons
such disclosure is sought or required. The subpoenaing party must
include that information in the notice in the first instance, lest itbe
subject to a challenge for facial insufficiency. Contrary to petitioner’s
contention, however, the subpoenaing party’s notice obligation was
never intended by the legislature to shift the burden of proof on a
motion to quash from a nonparty to the subpoenaing party, but, rather,
was meant to apprise a stranger to the litigation the “circumstances or
reasons” why the requested disclosure was sought or required.
Id. at 39 (internal citations and quotations omitted) (emphasis added).
38. Here, as discussed in further detail below, the Subpoena was properly issued, properly
served and properly seeks disclosure material and necessary to this action. As such, the burden shifts
to Plaintiff to demonstrate that “the futility of the process to uncover anything legitimate is inevitable
or obvious” or that “the information sought is utterly irrelevant to any proper inquiry.” Kapon, 23
NY3d at 39.
A. The Subpoena Was Properly Issued
39. Pursuant to CPLR § 3120: “[A]ny party may serve . . . on any other person a subpoena
duces tecum . .. to produce and permit the party seeking discovery . . .to inspect, copy, test or
photograph any designated documents[.]”
40. Pursuant to CPLR § 2302 (a): “Subpoenas may be issued without a court order by . . .
an attorney of record for a party to an action.”
41. Moreover, pursuant to CPLR § 3101 (a) (4): “There shall be full disclosure of all matter
material and necessary in the prosecution or defense of an action, regardless of the burden of proof,
by . . . any other person, upon notice stating the circumstances or reasons such disclosure is sought or
required.”
42. As stated by the Court of Appeals in Kapon v. Koch, supra, the notice requirement in
CPLR § 3101 (a) (4) “is the only meaningful distinction between the mechanisms seeking disclosure
from parties and nonparties.” Id. at 36.
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43. Here, the Subpoena was served by “a party” (i.e.,Defendants) upon “any other
person” (i.e., the Nonparty) pursuant to CPLR § 3120, and the Subpoena was “issued without a court
order by . . . an attorney of record for a party to an action” pursuant to CPLR § 2302 (a).
44. Moreover, the Subpoena contains the following language pursuant to CPLR § 3101
(a) (4):
PLEASE TAKE FURTHER NOTICE that the purpose of this
Subpoena is to obtain documents and testimony which may be relevant
to the defenses interposed by Defendants-Tenants in this action in
which Defendants-Tenants allege, inter alia, that no valid and
enforceable certificate of occupancy exists for the Building (defined
above).
See Exhibit A.
45. Thus, the Subpoena was properly issued in accordance with the CPLR.
B. The Subpoena Was Properly Served
46. Pursuant to CPLR § 2303 (a), “a subpoena duces tecum shall be served in the same
manner as a summons” and “[a]ny person subpoenaed shall be paid or tendered in advance authorized
traveling expenses and one day’s witness fee.”
47. Here, the Nonparty was served on July 11, 2022, at 6321 New Utrecht Avenue,
Brooklyn, New York when the process server personally delivered the subpoena to “Douglas Pulaski,
Partner.” See Exhibit A.
48. That same day, a copy of the Subpoena was mailed to the Nonparty “in a securely
sealed and postpaid wrapper with the words “PERSONAL AND CONFIDENTIAL” written on the
envelope and not indicating on the outside that it is from an attorney[.]” See Exhibit A.
49. At the time of service, a $33.00 witness fee was tendered. See Exhibit A.
50. Thus, the Subpoena was properly served in accordance with CPLR § 2303 (a).
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C. The Subpoena Seeks Material and Necessary Disclosure
51. As noted above, CPLR § 3101 (a) (4) provides that “[t]here shall be full disclosure of
all matter material and necessary in the prosecution or defense of an action, regardless of the burden
of proof, by . . . any other person, upon notice stating the circumstances or reasons such disclosure is
sought or required.”
52. The requirement that the disclosure sought be “material and necessary as used in
[CPLR § 3101] must be interpreted liberally to require disclosure, upon request, of any facts bearing
on the controversy which will assist preparation for trial by sharpening the issues and reducing delay
and prolixity.” Kapon, 23 NY3d at 38 (citing Allen v. Crowell-Collier Publ. Co., 21 NY2d 403, 288 NYS2d
449 (1968) (internal quotations omitted).
53. Moreover, CPLR § 3101 (a) (4) “imposes no requirement that the subpoenaing party
demonstrate that it cannot obtain disclosure from any other source. Thus, so long as the disclosure
sought is relevant to the prosecution or defense of an action, it must be provided by the nonparty.” Id.
at 38.
54. Here, the Subpoena seeks documents and testimony from the Nonparty, the architect
responsible for obtaining the Adjacent Lot CO. See NYSCEF Doc. No. 283 - 2001 Alt-1 Application.
55. As noted above, Defendants have interposed a defense pursuant to MDL § 302,
asserting that Plaintiff’s claim for monetary judgments for withheld rent must be denied because the
Building, as built and as it exists today, fails to comport with the Adjacent Lot CO.
56. MDL § 301 (1) provides that: “No multiple dwelling shall be occupied in whole or in
part until the issuance of a certificate by the department that said dwelling conforms in all respects to
the requirements of this chapter, to the building code and rules and to all other applicable law[.]”
57. MDL § 302 (1) (b) further provides that: “No rent shall be recovered by the owner of
such premises for said period, and no action or special proceeding shall be maintained therefor, or for
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possession of said premises for nonpayment of such rent.” See also Chazon, LLC v. Maugenest, 19 NY3d
410, 948 NYS2d 571 (2012).
58. Pursuant to New York City Administrative Code § 28-118.3.2:
No change shall be made to a building, open lot or portion thereof
inconsistent with the last issued certificate of occupancy or, where
applicable, inconsistent with the last issued certificate of completion
for such building or open lot or which would bring it under some
special provision of this code or other applicable laws or rules, unless
and until the commissioner has issued a new or amended certificate of
occupancy. (emphasis added)
59. Similarly, pursuant to New York City Administrative Code § 27-217 (a):
No change shall be made in the occupancy or use of an existing
building which is inconsistent with the last issued certificate of
occupancy for such building, or which would bring it under some
special provision of this code or other applicable law or regulation,
unless a new certificate of occupancy is issued by the commissioner
certifying that such building or part thereof conform to all of the
applicable provisions of this code and all other applicable laws and
regulations for the proposed new occupancy or use. (emphasis added)
60. In short, New York City Administrative Code §§ 28-118.3.2 and 27-217 (a) requires
that a building owner permit only the use and occupancy of their building in the precise manner stated
on the building’s certificate of occupancy.
61. Without such a requirement, building owners could alter their buildings – potentially
resulting in dangerous and unlawful conditions – while relying on a previously issued certificate of
occupancy that does not reflect the actual configuration and/or use of the building. This would
provide building owners carte blanche to perform illegal alteration without compliance with the law,
thereby substantially undermining the remedial purpose of MDL §§ 301 and 302.
62. Here, the Adjacent Lot CO was made applicable to the Building effective February 22,
2005 pursuant to the Order and Declaratory Judgment. See NYSCEF Doc. No. 298 - Order and
Declaratory Judgment.
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63. Accordingly, for Plaintiff to avoid the prohibition against collecting rent and/or use
and occupancy contained in MDL § 302, the Building must comport with the Adjacent Lot CO and
the plans filed with the DOB in connection therewith. See Matter of GVS Props. LLC v. Vargas, 172
AD3d 466, 100 NYS3d 230 (1st Dept 2019) (affirming the dismissal of nonpayment proceedings
pursuant to MDL § 302 where building’s occupancy “exceeded the use permitted” by the certificate
of occupancy); see also Trafalgar Co. v. Malone, 155 NYS3d 272, 73 Misc3d 137(A) (App. Term, 1st Dept
2021) (affirming dismissal of nonpayment proceeding pursuant to MDL § 302 where units had been
illegally altered by landlord); West 48th Holdings LLC v. Eliyahu, 116 NYS3d 843, 64 Misc3d 133(A)
(App. Term, 1st Dept 2019) (affirming dismissal of nonpayment proceeding where building had been
altered without new certificate of occupancy “even if tenant’s apartment was not one of the newly
created apartments”).
64. Here, in opposition to Plaintiff’s motion for summary judgment on, inter alia, it’s cause
of action for monetary judgments for withheld rent, Defendants have already set forth numerous
instances where the Building fails to comport to the Adjacent Lot CO, as follows:
a. The Adjacent Lot CO describes the Building as thirty-eight (38) feet in height;
however, the Building is actually over fifty-four (54) feet in height.
b. The plans filed in connection with the Adjacent Lot CO show private
recreation rooms in the Building’s cellar connected to the units on the Building’s first floor;
however, the Building’s cellar is actually an open, common recreation area.
c. The plans filed in connection with the Adjacent Lot CO show Unit 301 as a
duplex unit; however, Unit 301 is not a duplex unit, and Unit 401 is directly above it.
d. The Adjacent Lot CO states that there are sixteen (16) units on the Building’s
fourth floor; however, there are actually seventeen (17) units on the Building’s fourth floor
(resulting from the fact that Unit 301 was not constructed as a duplex unit).
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e. The Building’s units contain cast-iron columns that have not been properly
fire-protected.
f. The exterior walls of a portion of the Building are not three-hour fire rated, as
required.
g. The Building’s Floor Area Ratio violates the applicable Zoning Resolution.
h. The ceiling of the Building’s cellar is not properly fire protected.
i. The Building is not fully and properly sprinklered.
j. The Building contains windows that are less than five (5) feet from the lot line,
which fail to provide required natural light and ventilation.
k. The Building’s heating units are illegally vented through the Building’s exterior
walls.
l. The Building contains numerous, non-fire proof entrance doors that are not
self-closing.
See NYSCEF Doc. No. 256 - Affidavit of Arthur Atlas, R.A..
65. As a result, the disclosure sought in the Subpoena is material and necessary to
Defendants’ MDL § 302 defense in this action. Simply put, the documents, plans, diagrams and
correspondence sought from the Nonparty, together with the requested Nonparty deposition
testimony, bears on the controversy herein (i.e., Plaintiff’s entitlement to collect rent from Defendants)
and “will assist preparation for trial by sharpening the issues and reducing delay and prolixity.” Kapon,
23 NY3d at 38.
66. Although Plaintiff attempts to construe the disclosure sought in the Subpoena as
“utterly irrelevant to any improper inquiry,” Plaintiff mistakenly asserts that the Order and Declaratory
Judgment forecloses any defense pursuant to MDL § 302. However, although the Order and
Declaratory Judgment determined that the Adjacent Lot CO applied to the Building since the date of
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its issuance, the Order and Declaratory Judgment did not determine that the Building comports to the
Adjacent Lot CO. The Building’s adhesion to the Adjacent Lot CO – and the plans under which the
Adjacent Lot CO was obtained – remains an outstanding issue in this action that has not yet been
disposed.
67. Further, as noted above, Plaintiff’s motion for summary judgment – which Defendants
opposed, inter alia, on the basis of issues of material fact as to whether the Building comports with the
Adjacent Lot CO – remains sub judice. Plaintiff cannot, in the context of this motion to quash, seek a
determination that Defendants’ defenses are meritless or behave as though those defenses were never
interposed.
68. Accordingly, Plaintiff has failed to meet burden the burden necessary to quash the
Subpoena, and Defendant’s motion must be denied. See, e.g., Kapon, supra; Goodstein v. 695 9th Avenue
Housing Development Fund Corporation, 60 Misc3d 1227(A), 2018 WL 4101631 (Table), 2018 N.Y. Slip
Op. 51248(U) (Aug. 22, 2018).
D. Plaintiff Received Adequate Notice of the Subpoena
69. Finally, to the extent Plaintiff seeks to quash the Subpoena on the grounds that it did
not receive notice thereof contemporaneous with service, itis respectfully submitted that Plaintiff
received adequate notice insofar as it was not prejudiced or otherwise unable to move to quash the
Subpoena before disclosure was received.2
70. Indeed, as stated above, to date, the Nonparty has not objected and/or otherwise
responded to the Subpoena.
71. Further, to the extent Plaintiff alleges that the service of an electronic copy of the
subpoena – sent via email to Plaintiff’s counsel during a discussion about a proposed compliance
conference order in this action – renders the Subpoena defective, Plaintiff fails to acknowledge that a
2Moreover, Defendants can rectify this issue by simply re-serving the Subpoena upon the Nonparty with new return dates.
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hard copy of the Subpoena was promptly mailed to their offices by your affirmant after receipt of the
affidavit of service from the process server.
72. At any rate, as stated by this Court in Kimmel v. Schon, 2014 N.Y. Misc. LEXIS 2797,
2014 NY Slip Op. 31605 (U) (Sup. Ct., NY Co.):
Pursuant to CPLR 3120 (3): The party issuing a subpoena duces tecum
. . . , shall at the same time serve a copy of the subpoena upon all other
parties . . . , and CPLR § 2303 (a) provides: . . . so that it is received by
such parties promptly after service on the witness and before the
production of books, papers or other things. This procedure is
tantamount to statutory standing, since this allows a party to move for
a protective order or to move to quash the subpoena in advance of the
actual production of the nonparty, if that is the desired course.
Id. (internal quotations and citations omitted).
73. Based on the foregoing, and given that Plaintiff has moved to quash the subpoena
prior to the actual production of the Nonparty, itis respectfully submitted that Plaintiff was not
prejudiced by the notice it was provided, and, to the extent any defect exists based upon Plaintiff’s
notice, such defect was rendered moot by this motion.
IV. CONCLUSION
74. For the foregoing reasons, Defendants respectfully request that Plaintiff’s motion be
denied in its entirety, together with such other and further relief as this Court finds just and proper
under the circumstances.
Dated: Brooklyn, New York
August 15, 2022
___________________________
ANDREW D. CASSADY
15
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FILED: KINGS COUNTY CLERK 08/15/2022 10:31 AM INDEX NO. 507079/2020
NYSCEF DOC. NO. 332 RECEIVED NYSCEF: 08/15/2022
CERTIFICATION OF COMPLIANCE WITH 22 NYCRR § 202.8-B
ANDREW D. CASSADY, an attorney duly sworn to practice before the courts of this
State, hereby affirms, under penalty of perjury, the truth of the following:
1. Your affirmant is associated with the law firm of Ween & Kozek, PLLC, attorneys for
the Defendants-Tenants in this proceeding.
2. I hereby affirm that the foregoing Affirmation in Opposition to Motion to Quash
contains a total of 4,580 words, inclusive of point headings and footnotes, and exclusive of the caption,
table of contents and table of authorities.
Dated: Brooklyn, New York
August 15, 2022
___________________________
ANDREW D. CASSADY
16 of 16
Preview
FILED: KINGS COUNTY CLERK 08/15/2022 10:31 AM INDEX NO. 507079/2020 NYSCEF DOC. NO. 332 RECEIVED NYSCEF: 08/15/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------------------------------------------------------------------X OPERA HOUSE LOFTS LLC, : : Index No.: 507079/2020 Plaintiff-Landlord, : : AFFIRMATION IN - against - : OPPOSITION TO : MOTION TO QUASH CHRISTOPHER CARHAHAN, ET AL., : : Defendants-Tenants. : ------------------------------------------------------------------------X ANDREW D. CASSADY, an attorney duly sworn to practice before the courts of this State, hereby affirms, under penalty of perjury, the truth of the following: 1. Your affirmant is associated with the law firm of WEEN & KOZEK, PLLC, attorneys for Defendants-Tenants RYAN SHOLLENBERGER (Unit 105), CELINA VICIOSO (Unit 107), MICHAEL CHESBRO (Unit 108), TATIANA REID (Unit 109), PIYA MALIK (Unit 111), LAURA NEWMAN (Unit 113), DIANA OSORIO (Unit 114), KELSEY FAIRHURST and BRYANT WELLS (Unit 115), SHANNON LUMPKIN (Unit 116), JESSICA MÜLLER a/k/a JESSICA MILLER (Unit 206), GAVIN KOEPKE and SARA LABRIOLA (Unit 209), JEWEL PAULA SMITH, JORDAN SMITH and HELLEN SMITH a/k/a SHARAHYA CARTER (Unit 210), HECTOR MARCEL a/k/a HECTOR MALACARIA (Unit 211), DANIEL MCINERERY, RICHARD EINHORN, ARI FINKEL and MICHAEL RALSTON (Unit 212), RYAN SCHWEIZTER and MOLLY WYPYSKI (Unit 213), SYLVIE WISE (Unit 214), KENDALL PAYNE (Unit 301), MUTAURWA MAPONDERA (Unit 302), SUBANITA SUWAN (Unit 305), CASEY-LEIGH JORDAN a/k/a CASSANDRA L. EMMETT (Unit 306), ALEX REGEN a/k/a ALEX REGEN (Unit 309), BETHANY REEVES (Unit 315), JAKA VINSEK (Unit 401), CAROLINE SILVERMAN and WILLIAM KLIMPERT (Unit 402), BETH MORGAN and DAVID 1 of 16 FILED: KINGS COUNTY CLERK 08/15/2022 10:31 AM INDEX NO. 507079/2020 NYSCEF DOC. NO. 332 RECEIVED NYSCEF: 08/15/2022 RICHTER (Unit 403), DAVID CALL (Unit 405), RICHARD MAGUIRE (Unit 406), DANA CATALDO (Unit 410), CHELSEA SPENCER and JOHANNES STAUDT (Unit 413), JOSH REAMES and AMBER RENAYE (Unit 414), and ZACHARY PLESS (Unit 415) (collectively, “Defendants”) in this action. As such, I am fully familiar with the facts and circumstances set forth herein. 2. This affirmation is respectfully submitted in opposition to the motion of Plaintiff OPERA HOUSE LOFTS LLC (“Plaintiff”) seeking, inter alia, to quash the nonparty subpoena served upon Bricolage Architecture & Design, PLLC, by Harry Radusky, A.I.A. in this action. 3. For the reasons set forth below, it is respectfully submitted that Plaintiff’s motion should be denied in its entirety. I. PRELIMINARY STATEMENT 4. This action concerns the building known as the Opera House Lofts and located at 11- 27 Arion Place, Brooklyn, New York, Tax Block/Lot: 3136/40 (the “Building”). 5. Plaintiff commenced this action seeking, inter alia,a declaratory judgment that the certificate of occupancy issued for 9 Arion Place, Brooklyn, New York, Tax Block/Lot: 3136/48 on February 22, 2005 (the “Adjacent Lot CO”) applied to the Building since its issuance, together with monetary judgments against Defendants for rents withheld pursuant to Multiple Dwelling Law (“MDL”) § 302. 6. On or about November 3, 2021, the Court issued an Order and Declaratory Judgment that sua sponte granted Plaintiff summary judgment on its first cause of action and declared that the Adjacent Lot CO was retroactively applicable to the Building. 7. Thereafter, on or about February 10, 2022, Defendants interposed an answer in this action. 2 2 of 16 FILED: KINGS COUNTY CLERK 08/15/2022 10:31 AM INDEX NO. 507079/2020 NYSCEF DOC. NO. 332 RECEIVED NYSCEF: 08/15/2022 8. With respect to Plaintiff’s cause of action for monetary judgments for withheld rent – now predicated upon the Order and Declaratory Judgment’s retroactive application of the Adjacent Lot CO to the Building – Defendants interposed defenses pursuant to MDL § 302 asserting that the Building, as built and presently configured, fails to comport with the Adjacent Lot CO and the plans pursuant which the Adjacent Lot CO was issued. 9. In connection with Defendant’s MDL § 302 defenses, on July 11, 2022, Defendants served a subpoena duces tecum and ad testificandum upon Bricolage Architecture & Design, PLLC, by Harry Radusky, A.I.A. (the “Nonparty”) 1 seeking, inter alia,the production of Department of Buildings filings, architectural plans, drawings, designs, schematics, contracts and correspondence relating to the Building and the Adjacent Lot CO. 10. On or about August 2, 2022, Plaintiff brought this motion by order to show cause seeking, inter alia, to quash the Subpoena. 11. Notably, to date, the Nonparty has failed to object and/or otherwise respond to the Subpoena. 12. At any rate, Plaintiff’s motion must be denied in its entirety. As stated in further detail below, the Subpoena was properly issued, properly served and properly seeks disclosure that is material and necessary to Defendants’ MDL § 302 defenses in this action. Moreover, to the extent Plaintiff seeks to construe the Subpoena as “utterly irrelevant to any proper inquiry,” Plaintiff fails to acknowledge the extant issues in this action as to whether or not MDL § 302 bars Plaintiff from collecting rent from Defendants because the Building, as built and as it exists today, fails to comport with the Adjacent Lot CO. Finally, to the extent Plaintiff seeks to quash the subpoena on the grounds that Plaintiff did not receive a copy thereof contemporaneous with service, it is respectfully submitted that Plaintiff received adequate notice to bring this motion to quash prior to Defendants obtaining 1The Nonparty is the architect responsible for obtaining the Adjacent Lot CO. 3 3 of 16 FILED: KINGS COUNTY CLERK 08/15/2022 10:31 AM INDEX NO. 507079/2020 NYSCEF DOC. NO. 332 RECEIVED NYSCEF: 08/15/2022 any disclosure pursuant to the Subpoena. As such, Plaintiff was not prejudiced or otherwise denied any process in this action. II. FACTS AND PRIOR PROCEEDINGS 13. As noted above, the Building is located at 11-27 Arion Place, Brooklyn, New York, Tax Block/Lot: 3136/40. Adjacent to the Building is an undeveloped lot located at 9 Arion Place, Brooklyn, New York, Tax Block/Lot: 3136/48 (the “Adjacent Lot”). 14. On or about February 22, 2005, the Department of Buildings (the “DOB”) issued a certificate of occupancy under CO Number 301247327 for the Adjacent Lot (i.e.,9 Arion Place, Brooklyn, New York, Tax Block/Lot: 3136/40) (the “Adjacent Lot CO”). See NYSCEF Doc. No. 285 - Adjacent Lot CO. 15. Thereafter, on or about April 2, 2020, Plaintiff filed a “no work” Alt-1 application with the DOB under DOB Job No. 322033624 seeking to transfer the Adjacent Lot CO to the Building. See NYSCEF Doc. No. 286 - 2020 Alt-1 Application. 16. Rather than transfer the Adjacent Lot CO to the Building, on or about September 21, 2020, the DOB issued a new certificate of occupancy for the Building under Certificate of Occupancy No. 322033624F (the “New Building CO”). See NYSCEF Doc. No. 287 - New Building CO. 17. Following the DOB’s issuance of the New Building CO (effective September 21, 2020), Plaintiff commenced this action seeking, inter alia, a declaratory judgment that the Adjacent Lot CO (effective February 22, 2005) applied to the Building since the date of its issuance. 18. On or about March 15, 2021, Defendants brought a motion seeking dismissal of this action in its entirety because, inter alia, the DOB was a necessary party to Plaintiff’s cause of action for a declaratory judgment. 19. Thereafter, on or about July 23, 2021, this Court issued an interim order adjourning Defendants’ motion to dismiss and directing Plaintiff “file and serve a Third Amended Complaint, 4 4 of 16 FILED: KINGS COUNTY CLERK 08/15/2022 10:31 AM INDEX NO. 507079/2020 NYSCEF DOC. NO. 332 RECEIVED NYSCEF: 08/15/2022 adding the New York City Department of Buildings as a party defendant and asserting the First Cause of Action, for declaratory judgment, against the NYC Department of Buildings, not the tenants.” See NYSCEF Doc. No. 294 - Interim Order. 20. On or about August 16, 2021, Plaintiff filed a third amended complaint naming the DOB as a defendant. See NYSCEF Doc. No. 295 - Third Amended Complaint with Supplemental Summons 21. Thereafter, on or about September 22, 2021, the DOB brought a pre-answer motion to dismiss this action as against the DOB for failure to state a cause of action for declaratory judgment. See NYSCEF Doc. No. 296 - DOB Notice of Motion. 22. On or about September 24, 2021, this Court issued a short form order, inter alia, denying as moot Defendants’ motion to dismiss for failure to name a necessary party and granting the DOB’s motion to dismiss to the extent of directing Plaintiff “to settle an order directing NYC DOB to correct the Certificate of Occupancy, on notice.” See NYSCEF Doc. No. 297 - Short Form Order. 23. Thereafter, on November 3, 2021, the Supreme Court issued the Order and Declaratory Judgment, pursuant to which Plaintiff’s “first cause of action for a declaratory judgment that the [Adjacent Lot CO] issued on February 22, 2005 is valid and applicable to the building located at 11-27 Arion Place, Brooklyn, New York on Block 3136, Lot 40, and that as such, the Building had a valid residential certificate of occupancy since the issuance of same” was granted. See NYSCEF Doc. No. 298 - Order and Declaratory Judgment. 24. In other words, in the context of determining the DOB’s pre-answer motion to dismiss Plaintiff’s complaint as against the DOB, this Court sua sponte granted Plaintiff summary judgment on its first cause of action. 25. Following the issuance of the Order and Declaratory Judgment, the DOB revoked the New Building CO and modified the Adjacent Lot CO to be applicable to the Building as of February 5 5 of 16 FILED: KINGS COUNTY CLERK 08/15/2022 10:31 AM INDEX NO. 507079/2020 NYSCEF DOC. NO. 332 RECEIVED NYSCEF: 08/15/2022 22, 2005. See NYSCEF Doc. No. 299 - Revoked New Building CO; see also NYSCEF Doc. No. 300 - Modified Adjacent Lot CO. 26. On February 10, 2022, Defendants interposed an answer to Plaintiff’s third amended complaint. See NYSCEF Doc. No. 301 - Answer to Third Amended Complaint. 27. Thereafter, on February 28, 2022, this Court issued a preliminary conference order directing the parties to proceed with disclosure. See NYSCEF Doc. No. 193 - Order - Preliminary Conference. 28. On or about April 25, 2022, Plaintiff brought a motion seeking, inter alia,summary judgment on its cause of action for a monetary judgment for rent withheld by Defendants. See NYSCEF Doc. No. 197 - Notice of Motion. 29. Defendants opposed the motion on the grounds, inter alia, that Plaintiff is barred by MDL § 302 from collecting rent from Defendants because the Building, as built and as it exists today, fails to comport with the Adjacent Lot CO. See NYSCEF Doc. No. 253 - Affirmation in Opposition to Motion for Summary Judgment. 30. Plaintiff’s motion for summary judgment was marked “fully submitted” on June 10, 2022 and remains sub judice. 31. On or about July 11, 2022, the Nonparty was served with the Subpoena. Annexed hereto as Exhibit A is a copy of the Subpoena with affidavit of service. 32. Thereafter, Plaintiff brought this motion seeking, inter alia, to quash the Subpoena. 33. As noted above, to date, the Nonparty has not objected and/or otherwise responded to the Subpoena. 6 6 of 16 FILED: KINGS COUNTY CLERK 08/15/2022 10:31 AM INDEX NO. 507079/2020 NYSCEF DOC. NO. 332 RECEIVED NYSCEF: 08/15/2022 III. THE SUBPOENA IS VALID UNDER THE STANDARD SET FORTH BY THE COURT OF APPEALS IN KAPON V. KOCH AND SHOULD NOT BE QUASHED 34. On April 3, 2014, the Court of Appeals issued a decision in Kapon v. Koch, 23 NY3d 32, 988 NYS2d 559 (2014) which set forth the standard under which a nonparty disclosure may be compelled by subpoena and abrogated all prior, inconsistent decisions. 35. In Kapon v. Koch, the Court of Appeals affirmed the denial of a nonparty’s motion to quash a subpoena served upon it. There, John Kapon, a New York resident, commenced a special proceeding to quash a nonparty subpoena served upon him by William Koch in connection with an action in California wherein Koch asserted fraud by virtue of counterfeit wine. Id. at 35. The Supreme Court denied the motion to quash, and the Appellate Division affirmed. Id. 36. On appeal, the Court of Appeals concluded that: [T]he material and necessary standard adopted by the First and Fourth Departments is the appropriate one and is in keeping with this state’s policy of liberal discovery. The words material and necessary as used in [CPLR] section 3101 must be liberally interpreted to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. Section 3101 (a) (4) imposes no requirement that the subpoenaing party demonstrate that it cannot obtain the requested disclosure from any other source. Thus, so long as the disclosure sought is relevant to the prosecution or defense of an action, it must be provided by the nonparty. Id. at 38 (internal citations and quotations omitted) (emphasis added). 37. The Court of Appeals further held: An application to quash a subpoena should be granted only where the futility of the process to uncover anything legitimate isinevitable or obvious or where the information sought is utterly irrelevant to any proper inquiry. It is the one moving to vacate the subpoena who has the burden of establishing that the subpoena should be vacated under such circumstances. Although the nonparty bears the initial burden of proof on a motion to quash, section 3101 (a) (4)’s notice requirement nonetheless obligates the subpoenaing party to state, either on the face of the 7 7 of 16 FILED: KINGS COUNTY CLERK 08/15/2022 10:31 AM INDEX NO. 507079/2020 NYSCEF DOC. NO. 332 RECEIVED NYSCEF: 08/15/2022 subpoena or in a notice accompanying it, the circumstances or reasons such disclosure is sought or required. The subpoenaing party must include that information in the notice in the first instance, lest itbe subject to a challenge for facial insufficiency. Contrary to petitioner’s contention, however, the subpoenaing party’s notice obligation was never intended by the legislature to shift the burden of proof on a motion to quash from a nonparty to the subpoenaing party, but, rather, was meant to apprise a stranger to the litigation the “circumstances or reasons” why the requested disclosure was sought or required. Id. at 39 (internal citations and quotations omitted) (emphasis added). 38. Here, as discussed in further detail below, the Subpoena was properly issued, properly served and properly seeks disclosure material and necessary to this action. As such, the burden shifts to Plaintiff to demonstrate that “the futility of the process to uncover anything legitimate is inevitable or obvious” or that “the information sought is utterly irrelevant to any proper inquiry.” Kapon, 23 NY3d at 39. A. The Subpoena Was Properly Issued 39. Pursuant to CPLR § 3120: “[A]ny party may serve . . . on any other person a subpoena duces tecum . .. to produce and permit the party seeking discovery . . .to inspect, copy, test or photograph any designated documents[.]” 40. Pursuant to CPLR § 2302 (a): “Subpoenas may be issued without a court order by . . . an attorney of record for a party to an action.” 41. Moreover, pursuant to CPLR § 3101 (a) (4): “There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by . . . any other person, upon notice stating the circumstances or reasons such disclosure is sought or required.” 42. As stated by the Court of Appeals in Kapon v. Koch, supra, the notice requirement in CPLR § 3101 (a) (4) “is the only meaningful distinction between the mechanisms seeking disclosure from parties and nonparties.” Id. at 36. 8 8 of 16 FILED: KINGS COUNTY CLERK 08/15/2022 10:31 AM INDEX NO. 507079/2020 NYSCEF DOC. NO. 332 RECEIVED NYSCEF: 08/15/2022 43. Here, the Subpoena was served by “a party” (i.e.,Defendants) upon “any other person” (i.e., the Nonparty) pursuant to CPLR § 3120, and the Subpoena was “issued without a court order by . . . an attorney of record for a party to an action” pursuant to CPLR § 2302 (a). 44. Moreover, the Subpoena contains the following language pursuant to CPLR § 3101 (a) (4): PLEASE TAKE FURTHER NOTICE that the purpose of this Subpoena is to obtain documents and testimony which may be relevant to the defenses interposed by Defendants-Tenants in this action in which Defendants-Tenants allege, inter alia, that no valid and enforceable certificate of occupancy exists for the Building (defined above). See Exhibit A. 45. Thus, the Subpoena was properly issued in accordance with the CPLR. B. The Subpoena Was Properly Served 46. Pursuant to CPLR § 2303 (a), “a subpoena duces tecum shall be served in the same manner as a summons” and “[a]ny person subpoenaed shall be paid or tendered in advance authorized traveling expenses and one day’s witness fee.” 47. Here, the Nonparty was served on July 11, 2022, at 6321 New Utrecht Avenue, Brooklyn, New York when the process server personally delivered the subpoena to “Douglas Pulaski, Partner.” See Exhibit A. 48. That same day, a copy of the Subpoena was mailed to the Nonparty “in a securely sealed and postpaid wrapper with the words “PERSONAL AND CONFIDENTIAL” written on the envelope and not indicating on the outside that it is from an attorney[.]” See Exhibit A. 49. At the time of service, a $33.00 witness fee was tendered. See Exhibit A. 50. Thus, the Subpoena was properly served in accordance with CPLR § 2303 (a). 9 9 of 16 FILED: KINGS COUNTY CLERK 08/15/2022 10:31 AM INDEX NO. 507079/2020 NYSCEF DOC. NO. 332 RECEIVED NYSCEF: 08/15/2022 C. The Subpoena Seeks Material and Necessary Disclosure 51. As noted above, CPLR § 3101 (a) (4) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by . . . any other person, upon notice stating the circumstances or reasons such disclosure is sought or required.” 52. The requirement that the disclosure sought be “material and necessary as used in [CPLR § 3101] must be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity.” Kapon, 23 NY3d at 38 (citing Allen v. Crowell-Collier Publ. Co., 21 NY2d 403, 288 NYS2d 449 (1968) (internal quotations omitted). 53. Moreover, CPLR § 3101 (a) (4) “imposes no requirement that the subpoenaing party demonstrate that it cannot obtain disclosure from any other source. Thus, so long as the disclosure sought is relevant to the prosecution or defense of an action, it must be provided by the nonparty.” Id. at 38. 54. Here, the Subpoena seeks documents and testimony from the Nonparty, the architect responsible for obtaining the Adjacent Lot CO. See NYSCEF Doc. No. 283 - 2001 Alt-1 Application. 55. As noted above, Defendants have interposed a defense pursuant to MDL § 302, asserting that Plaintiff’s claim for monetary judgments for withheld rent must be denied because the Building, as built and as it exists today, fails to comport with the Adjacent Lot CO. 56. MDL § 301 (1) provides that: “No multiple dwelling shall be occupied in whole or in part until the issuance of a certificate by the department that said dwelling conforms in all respects to the requirements of this chapter, to the building code and rules and to all other applicable law[.]” 57. MDL § 302 (1) (b) further provides that: “No rent shall be recovered by the owner of such premises for said period, and no action or special proceeding shall be maintained therefor, or for 10 10 of 16 FILED: KINGS COUNTY CLERK 08/15/2022 10:31 AM INDEX NO. 507079/2020 NYSCEF DOC. NO. 332 RECEIVED NYSCEF: 08/15/2022 possession of said premises for nonpayment of such rent.” See also Chazon, LLC v. Maugenest, 19 NY3d 410, 948 NYS2d 571 (2012). 58. Pursuant to New York City Administrative Code § 28-118.3.2: No change shall be made to a building, open lot or portion thereof inconsistent with the last issued certificate of occupancy or, where applicable, inconsistent with the last issued certificate of completion for such building or open lot or which would bring it under some special provision of this code or other applicable laws or rules, unless and until the commissioner has issued a new or amended certificate of occupancy. (emphasis added) 59. Similarly, pursuant to New York City Administrative Code § 27-217 (a): No change shall be made in the occupancy or use of an existing building which is inconsistent with the last issued certificate of occupancy for such building, or which would bring it under some special provision of this code or other applicable law or regulation, unless a new certificate of occupancy is issued by the commissioner certifying that such building or part thereof conform to all of the applicable provisions of this code and all other applicable laws and regulations for the proposed new occupancy or use. (emphasis added) 60. In short, New York City Administrative Code §§ 28-118.3.2 and 27-217 (a) requires that a building owner permit only the use and occupancy of their building in the precise manner stated on the building’s certificate of occupancy. 61. Without such a requirement, building owners could alter their buildings – potentially resulting in dangerous and unlawful conditions – while relying on a previously issued certificate of occupancy that does not reflect the actual configuration and/or use of the building. This would provide building owners carte blanche to perform illegal alteration without compliance with the law, thereby substantially undermining the remedial purpose of MDL §§ 301 and 302. 62. Here, the Adjacent Lot CO was made applicable to the Building effective February 22, 2005 pursuant to the Order and Declaratory Judgment. See NYSCEF Doc. No. 298 - Order and Declaratory Judgment. 11 11 of 16 FILED: KINGS COUNTY CLERK 08/15/2022 10:31 AM INDEX NO. 507079/2020 NYSCEF DOC. NO. 332 RECEIVED NYSCEF: 08/15/2022 63. Accordingly, for Plaintiff to avoid the prohibition against collecting rent and/or use and occupancy contained in MDL § 302, the Building must comport with the Adjacent Lot CO and the plans filed with the DOB in connection therewith. See Matter of GVS Props. LLC v. Vargas, 172 AD3d 466, 100 NYS3d 230 (1st Dept 2019) (affirming the dismissal of nonpayment proceedings pursuant to MDL § 302 where building’s occupancy “exceeded the use permitted” by the certificate of occupancy); see also Trafalgar Co. v. Malone, 155 NYS3d 272, 73 Misc3d 137(A) (App. Term, 1st Dept 2021) (affirming dismissal of nonpayment proceeding pursuant to MDL § 302 where units had been illegally altered by landlord); West 48th Holdings LLC v. Eliyahu, 116 NYS3d 843, 64 Misc3d 133(A) (App. Term, 1st Dept 2019) (affirming dismissal of nonpayment proceeding where building had been altered without new certificate of occupancy “even if tenant’s apartment was not one of the newly created apartments”). 64. Here, in opposition to Plaintiff’s motion for summary judgment on, inter alia, it’s cause of action for monetary judgments for withheld rent, Defendants have already set forth numerous instances where the Building fails to comport to the Adjacent Lot CO, as follows: a. The Adjacent Lot CO describes the Building as thirty-eight (38) feet in height; however, the Building is actually over fifty-four (54) feet in height. b. The plans filed in connection with the Adjacent Lot CO show private recreation rooms in the Building’s cellar connected to the units on the Building’s first floor; however, the Building’s cellar is actually an open, common recreation area. c. The plans filed in connection with the Adjacent Lot CO show Unit 301 as a duplex unit; however, Unit 301 is not a duplex unit, and Unit 401 is directly above it. d. The Adjacent Lot CO states that there are sixteen (16) units on the Building’s fourth floor; however, there are actually seventeen (17) units on the Building’s fourth floor (resulting from the fact that Unit 301 was not constructed as a duplex unit). 12 12 of 16 FILED: KINGS COUNTY CLERK 08/15/2022 10:31 AM INDEX NO. 507079/2020 NYSCEF DOC. NO. 332 RECEIVED NYSCEF: 08/15/2022 e. The Building’s units contain cast-iron columns that have not been properly fire-protected. f. The exterior walls of a portion of the Building are not three-hour fire rated, as required. g. The Building’s Floor Area Ratio violates the applicable Zoning Resolution. h. The ceiling of the Building’s cellar is not properly fire protected. i. The Building is not fully and properly sprinklered. j. The Building contains windows that are less than five (5) feet from the lot line, which fail to provide required natural light and ventilation. k. The Building’s heating units are illegally vented through the Building’s exterior walls. l. The Building contains numerous, non-fire proof entrance doors that are not self-closing. See NYSCEF Doc. No. 256 - Affidavit of Arthur Atlas, R.A.. 65. As a result, the disclosure sought in the Subpoena is material and necessary to Defendants’ MDL § 302 defense in this action. Simply put, the documents, plans, diagrams and correspondence sought from the Nonparty, together with the requested Nonparty deposition testimony, bears on the controversy herein (i.e., Plaintiff’s entitlement to collect rent from Defendants) and “will assist preparation for trial by sharpening the issues and reducing delay and prolixity.” Kapon, 23 NY3d at 38. 66. Although Plaintiff attempts to construe the disclosure sought in the Subpoena as “utterly irrelevant to any improper inquiry,” Plaintiff mistakenly asserts that the Order and Declaratory Judgment forecloses any defense pursuant to MDL § 302. However, although the Order and Declaratory Judgment determined that the Adjacent Lot CO applied to the Building since the date of 13 13 of 16 FILED: KINGS COUNTY CLERK 08/15/2022 10:31 AM INDEX NO. 507079/2020 NYSCEF DOC. NO. 332 RECEIVED NYSCEF: 08/15/2022 its issuance, the Order and Declaratory Judgment did not determine that the Building comports to the Adjacent Lot CO. The Building’s adhesion to the Adjacent Lot CO – and the plans under which the Adjacent Lot CO was obtained – remains an outstanding issue in this action that has not yet been disposed. 67. Further, as noted above, Plaintiff’s motion for summary judgment – which Defendants opposed, inter alia, on the basis of issues of material fact as to whether the Building comports with the Adjacent Lot CO – remains sub judice. Plaintiff cannot, in the context of this motion to quash, seek a determination that Defendants’ defenses are meritless or behave as though those defenses were never interposed. 68. Accordingly, Plaintiff has failed to meet burden the burden necessary to quash the Subpoena, and Defendant’s motion must be denied. See, e.g., Kapon, supra; Goodstein v. 695 9th Avenue Housing Development Fund Corporation, 60 Misc3d 1227(A), 2018 WL 4101631 (Table), 2018 N.Y. Slip Op. 51248(U) (Aug. 22, 2018). D. Plaintiff Received Adequate Notice of the Subpoena 69. Finally, to the extent Plaintiff seeks to quash the Subpoena on the grounds that it did not receive notice thereof contemporaneous with service, itis respectfully submitted that Plaintiff received adequate notice insofar as it was not prejudiced or otherwise unable to move to quash the Subpoena before disclosure was received.2 70. Indeed, as stated above, to date, the Nonparty has not objected and/or otherwise responded to the Subpoena. 71. Further, to the extent Plaintiff alleges that the service of an electronic copy of the subpoena – sent via email to Plaintiff’s counsel during a discussion about a proposed compliance conference order in this action – renders the Subpoena defective, Plaintiff fails to acknowledge that a 2Moreover, Defendants can rectify this issue by simply re-serving the Subpoena upon the Nonparty with new return dates. 14 14 of 16 FILED: KINGS COUNTY CLERK 08/15/2022 10:31 AM INDEX NO. 507079/2020 NYSCEF DOC. NO. 332 RECEIVED NYSCEF: 08/15/2022 hard copy of the Subpoena was promptly mailed to their offices by your affirmant after receipt of the affidavit of service from the process server. 72. At any rate, as stated by this Court in Kimmel v. Schon, 2014 N.Y. Misc. LEXIS 2797, 2014 NY Slip Op. 31605 (U) (Sup. Ct., NY Co.): Pursuant to CPLR 3120 (3): The party issuing a subpoena duces tecum . . . , shall at the same time serve a copy of the subpoena upon all other parties . . . , and CPLR § 2303 (a) provides: . . . so that it is received by such parties promptly after service on the witness and before the production of books, papers or other things. This procedure is tantamount to statutory standing, since this allows a party to move for a protective order or to move to quash the subpoena in advance of the actual production of the nonparty, if that is the desired course. Id. (internal quotations and citations omitted). 73. Based on the foregoing, and given that Plaintiff has moved to quash the subpoena prior to the actual production of the Nonparty, itis respectfully submitted that Plaintiff was not prejudiced by the notice it was provided, and, to the extent any defect exists based upon Plaintiff’s notice, such defect was rendered moot by this motion. IV. CONCLUSION 74. For the foregoing reasons, Defendants respectfully request that Plaintiff’s motion be denied in its entirety, together with such other and further relief as this Court finds just and proper under the circumstances. Dated: Brooklyn, New York August 15, 2022 ___________________________ ANDREW D. CASSADY 15 15 of 16 FILED: KINGS COUNTY CLERK 08/15/2022 10:31 AM INDEX NO. 507079/2020 NYSCEF DOC. NO. 332 RECEIVED NYSCEF: 08/15/2022 CERTIFICATION OF COMPLIANCE WITH 22 NYCRR § 202.8-B ANDREW D. CASSADY, an attorney duly sworn to practice before the courts of this State, hereby affirms, under penalty of perjury, the truth of the following: 1. Your affirmant is associated with the law firm of Ween & Kozek, PLLC, attorneys for the Defendants-Tenants in this proceeding. 2. I hereby affirm that the foregoing Affirmation in Opposition to Motion to Quash contains a total of 4,580 words, inclusive of point headings and footnotes, and exclusive of the caption, table of contents and table of authorities. Dated: Brooklyn, New York August 15, 2022 ___________________________ ANDREW D. CASSADY 16 of 16