Respondent's motion is denied to the extent it seeks dismissal of the petition and granted to the extent it seeks discovery. Discovery shall be limited to the deposition of petitioner's managing agent, and the production at that deposition of the items requested in paragraphs "1" through "3" of the proposed notice of deposition.
{**58 Misc 3d at 207}Petitioner's cross motion to deem its affidavits of service on the DHCR duly filed is denied as moot, given the court's finding above that there is no such filing requirement.
Upon completion of discovery, the parties may restore the case to the calendar by stipulation after securing a date from the part clerk.
Footnotes
Footnote 1:Petitioner bears the burden of proof on both the adequacy of its predicate notice and its claim that respondent committed or permitted a nuisance; accordingly, respondent could have addressed these issues in her answer simply by denying those paragraphs of the petition, without the use of "affirmative defenses," which are generally reserved for matters upon which the defendant or respondent has the burden of proof. As explained by the New York State Court of Appeals,