The following e-filed documents, listed by NYSCEF document number (Motion 003) 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 68, 69, 70, 71, 72, 73 were read on this motion for SUMMARY JUDGMENT.

The following e-filed documents, listed by NYSCEF document number (Motion 004) 62, 63, 64, 65, 66, 67, 74, 75, 76, 77 were read on this motion for DISCOVERY.

In this residential landlord-tenant action, plaintiff-landlord, Bold Group, LLC, is suing defendant-tenant, Omri Rachmut, and defendant-guarantor, Amir Shriki, for allegedly unpaid rent and use and occupancy (U&O), plus interest and attorney fees.

On motion sequence 003, defendants move under CPLR 3212 for (i) summary judgment dismissing plaintiff's claims; and (ii) summary judgment in defendants' favor on their counterclaims relating to the asserted absence of an obligation on their part to pay rent, their counterclaim for a return of the security deposit, and their counterclaim for attorney fees. On motion sequence 004, plaintiff moves under CPLR 3124 to compel discovery.

Motion sequences 003 and 004 are consolidated here for disposition. Both motions are denied.

1. On motion sequence 003, defendants argue that they do not owe an obligation to pay rent or U&O because a "rent-impairing violation" within the meaning of Multiple Dwelling Law (MDL) § 302-a (2)—namely a serious roof leak—existed of record in the building for the duration of Tenant's tenancy.^[FN1] (See NYSCEF No. 61 at 9.) To support this contention, defendants have provided a copy of an open-violation report maintained by the New York City Department of Housing Preservation and Development (HPD), listing an open violation in the form of a roof leak.^[FN2] (See NYSCEF No. 54.) The report reflects that a violation notice for this roof leak was issued in September 2009, well before the start of the lease in this action. (See id. at 1.) And plaintiff does not contest defendants' position that this violation, if it exists and has not been corrected, would constitute a "rent-impairing violation" within the meaning of MDL § 302-a. Defendants have thus made out a prima facie case with respect to this branch of their summary-judgment motion.

In opposition, plaintiff asserts that the roof leak either was repaired in 2009 or did not exist. If plaintiff is correct, the fact that HPD's records still list the violation as open would not bar plaintiff's entitlement to rent/U&O. (See MDL § 302-a [3] [b] [i]-[ii].) To support this [*2]assertion, plaintiff relies on the same violation report as do defendants. Plaintiff points to the report's notation that the building owner provided a certification in December 2009 that the violation had been corrected. (See NYSCEF No. 72 at ¶¶ 19-21, citing NYSCEF No. 54 at 1.) Plaintiff argues that this notation creates, at minimum, a disputed issue of fact barring summary judgment. This court agrees.^[FN3]

Plaintiff's evidence on this point, to be clear, is thin. Plaintiff could have, but did not, provide an affidavit from a person with knowledge about the repairs to the roof to fix the leak (or, for that matter, photographs showing the condition of the roof), or records maintained by plaintiff showing that HPD was mistaken in believing that the roof leaked in the first place. And, as defendants point out (NYSCEF No. 74 at ¶ 26), it is unclear why the certification provided by plaintiff in December 2009 did not result in the closing of the violation.

At the same time, defendants are relying only evidence, also thin, is the violation report itself. But the violation report itself reflects that plaintiff had certified at the time that it corrected the violation. Defendants do not provide evidence that the certification was inaccurate. And MDL § 302-a (3) itself makes clear that an HPD violation remaining open of record does not conclusively establish that the violation has persisted. In these circumstances, defendants have not shown their entitlement to judgment as a matter of law on this issue.^[FN4]

2. Defendants move for summary judgment on their claim for the $500 remaining from the security deposit that has not been returned, plus punitive damages under General Obligations Law (GOL) § 7-108 (g). Defendants' motion is denied. The underlying lease permits plaintiff to apply the security deposit to unpaid rent or other expenses related to a lease default by tenant. (See NYSCEF No. 49 at 1-2 § 6.) Plaintiff's complaint admittedly does not reflect that plaintiff applied the remaining $500 of the deposit to defendants' claimed arrears in rent/U&O. And plaintiff's argument that it may retain part or all of the deposit "as security" for those arrears (NYSCEF No. 72 at ¶¶ 11, 24) is groundless—both as a legal matter and because defendants have already secured those arrears by paying into court the amount claimed by plaintiff (see NYSCEF No. 56 at 7).^[FN5] But because plaintiff is entitled under the lease to have applied the $500 [*3]to the claimed amount, the court is not persuaded that plaintiff's failure to return the deposit should be treated as a violation of GOL § 7-108 (e)-(g). If plaintiff ultimately prevails in this action, its claim will be subject to a $500 offset reflecting application of the security deposit. If defendants ultimately prevail, plaintiff will be required to pay defendants $500, representing the amount of the deposit.

3. Given the denial of the other branches of defendants' summary-judgment motion, defendants' request for attorney fees is denied without prejudice.

4. Plaintiff's motion to compel (mot seq 004) is denied. As both parties' papers on this motion acknowledge, the court, in August 2023—months before plaintiff moved to compel—informed the parties by email of the court's conclusion that the discovery requests at issue were overbroad or otherwise impermissible, and that defendants therefore were not required to respond to them. (See NYSCEF No. 75 at 1.) This court afforded an opportunity to plaintiff to re-serve narrower revised requests consistent with the CPLR. (See id.) Plaintiff has not done so.

This court's denial of the motion to compel is without prejudice to plaintiff's now serving revised discovery requests, consistent with the court's August 2023 discovery determination appearing at NYSCEF No. 75. The court emphasizes that the scope and burden of any such revised requests must take into account the comparatively straightforward and self-contained character of the claims and counterclaims in this action.

Accordingly, it is

ORDERED that defendants' motion for summary judgment (mot seq 003) is denied; and it is further

ORDERED that plaintiff's motion to compel (mot seq 004) is denied; and it is further

ORDERED that the parties shall appear before this court for a telephonic status conference on April 5, 2024; and that any proposed orders exchanged between the parties when meeting and conferring in advance of the conference shall be consistent with this order and with the court's August 7, 2023, email to the parties.