January 9, 2019. Respondent allegedly sent a replacement check for January 2019 which was
deposited January 14, 2019, after commencement of this proceeding.
Petitioner states that only the stove and refrigerator were raised as issues by Respondent prior
to commencing the condition of the apartment. It is contended that Respondent had Petitioner
remove the stove and refrigerator but refused the replacements.
The independent contractor, Oscar Castellon, states in his Affidavit that he removed the
stove and refrigerator but Respondent refused replacements. Respondent allegedly told Oscar
Castellon that she would buy new items.
Respondent submits her Reply Affidavit, sworn to April 12, 2019. Respondent repeats her
claims that she is entitled to a new lease. Also, Respondent urges that the proceeding is
premature because this summary proceeding cannot be commenced until after the new lease term
expires. Respondent avers that Petitioner's accepting rent for October, November and December
of 2018, and failure to commence timely summary proceedings constitutes a waiver of the right
to bring this summary proceeding.
Petitioner moves for leave to conduct discovery on the issue of Respondent not occupying
her apartment as her primary residence as required by ETPR (9 NYCRR) Section 2504.4(d).
Petitioner has served the Demand for Documents and Information, dated March 8, 2019 to
ascertain documents and information to prove it's claim of nonprimary residence.
In opposition, Respondent states that no grounds exist to allow discovery. She avers that the
residence at 801 Tiller Drive, Forked River, New Jersey is a beach/vacation home. Respondent
maintains that she took care of her brother in New Jersey until his passing in June, 2018.