Lindholm v. Wiener

Murphy, P. J., and Kassal, J.,

dissent in a memorandum by Kassal, J., as follows: We disagree with the disposition at Special Term and would reverse the order and grant defendant’s motion to inspect and photograph the loft occupied by plaintiffs, f The issue as to plaintiffs’ status under the Loft Law (Multiple Dwelling Law, art 7-C), is presently pending before the loft board. However, there appears to be no procedure by which the board can direct discovery material relevant to the dispute; nor does section 282 of the Multiple Dwelling Law, establishing such unit, expressly contain such provision. On this basis, Special Term improperly deferred the issue by relegating the parties to an application before the loft board. $ The record does not reflect that the inspection was sought to harass plaintiffs or other residential tenants (CPLR 3103, subd [a]). It is conceded that the landlord had been accorded prior inspections. However, the inspection prior to commencement of the action does not foreclose a party from disclosure after suit has been instituted (see Marcus & Sons v Federal Ins. Co., 24 AD2d 922). Insofar as the two inspections held after the commencement of the litigation, appellant claims that he was unable to photograph the interior of the loft, necessary to assist in the defense of this action and desirable in the proceeding before the loft board. This assertion has not been challenged by plaintiffs. Contrary to the view expressed by the majority, CPLR article 31 authorizes and affords a basis for the inspection sought by that defendant herein. Accordingly, there was a legitimate basis for the additional request to photograph the loft and it would be of great assistance to the loft board in its determination.