220 W. 98 Realty LLC v New York Province for Socy. of Jesus

[*1] 220 W. 98 Realty LLC v New York Province for Socy. of Jesus 2005 NY Slip Op 51202(U) Decided on July 20, 2005 Civil Court, New York County McClanahan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 20, 2005
Civil Court, New York County

220 West 98 Realty LLC, Petitioner,

against

New York Province for the Society of Jesus, West Side Jesuit Community, et al., Respondent-Tenants.



L&T 102336/1998

Kevin C. McClanahan, J.

Respondents, The New York Province for the Society of Jesus (the "Province"), West Side Jesuit Community ("WSJC"), and the individual respondents move for partial[FN1] summary judgment dismissing the instant non-primary residence proceeding as to apartments 4D, 4E, 7A, 7J and 8B. Petitioner opposes the motion and cross-moves for a summary judgment of possession with respect to apartments 4E, 7J and 8B.

This summary holdover proceeding was commenced in 1998 to recover possession of sixteen apartments located at 220 West 98th Street, New York, New [*2]York. The Province is a world-wide Roman Catholic religious order of priest and brothers, better known as the Jesuits. The Jesuits are organized into "provinces", and each province is made up of a number of communities. The WSCJ is one of those communities and its membership consists of 23 men.

Background Facts

Relevant to this proceeding, in October of 1988, petitioner's predecessor-in-interest commenced a non-primary residence proceeding against the Province and others seeking possession of the 16 apartments. Petitioner and respondents moved for summary judgment. Respondent's motion was granted, and the proceeding was dismissed. Civil Court held that petitioner failed to provide proof that respondent West Side Jesuit Community utilized any other premises as a primary residence. Melohn v. The New York Province of the Society of Jesus, Civ Ct, New York County, March 16, 1989, Lobis, J, Index No. 10512/88).

Rather than appeal, petitioner settled the holdover proceeding pursuant to the Stipulation and Agreement dated December 11, 1989 (the "Stipulation"), which provided that the tenant would give petitioner a list of the present occupants of each of the 16 apartments. The Province prepared and furnished a list which designated the occupants of the apartments as follows:

4DAlan W. Briceland, Daniel Madigan, Chito Trillano.

4EAlex Soesilo Wijoyo.

7ARobert J. Keck, John G. McSherry.

7JRobert H. Springer.

8BPaul Chi Meng Pun

THE INSTANT PROCEEDING

In its Decision, the Appellate Term held: Landlord and the New York Province executed a stipulation in December 1989 which recognized the 'present occupants' of the 16 apartments pursuant to a list provided by The New York Province identifying one or more members of the Jesuit Community as the occupants of each apartment...To the extent the same occupants remain in possession and continue to utilize the same apartments as their primary residence, the facts have not changed since the dismissal of the prior holdover proceeding and stipulation of settlement.

In accordance with the foregoing, Appellate Term remanded the proceeding to Civil Court "...for a determination as to which apartments are no longer occupied by the occupants designated pursuant to the 1989 stipulation, and for entry of a final judgment accordingly."

In affirming the Appellate Term, the Appellate Division held: landlord, rather than appeal Civil Court's order in the 1988 summary [*3]proceeding, entered into a stipulation with the Province which specifically recognized that the 16 apartments were the primary residence of the occupants. Since the stipulation identifies particular individuals as the occupants of specific apartments, no perpetual tenancy is possible and we perceive no reason to disturb what is clearly a valid, binding agreement between the parties. Finally, Appellate Term properly remanded the matter to Civil Court for a determination as to which apartments are no longer occupied by the individuals designated pursuant to the 1989 Stipulation.

Respondents did not appeal or seek reargument of either determination. After remand to this Court, the parties engaged in discovery.

FINDINGS OF FACT AFTER DISCOVERY

Currently, Alan W. Briceland and Robert Keck reside in apartment 4D and 7A, respectively. Alex Soesilo Wijoyo does not currently reside in apartment 4E. Respondents' phone list indicates his last year of residency was 1998. Robert H. Springer has not resided in apartment 7J since 2001. Paul Chi Meng Pun has not occupied apartment 8B since 1989. Respondents' phone lists further indicate that Ned Murphy occupied apartment 8B from 1994-1999.

Robert Keck and William Briceland testified at their depositions that respondents combined apartments 4D/4E and 7A/7J in the summer of 1969. They were combined into two units by removing the kitchen area from two of the four apartments and taking down the wall that separated each set of apartments.

Regarding apartment 8B, Robert Keck testified that it was reconfigured in 1969 so that several of the rooms served as the dining room and kitchen for the whole community. With a few exceptions, the bedrooms have been used variously as guest rooms or as space for prayer and counseling.

In his affirmations, petitioner's managing agent denies knowledge of the construction and combination of the apartments and/or the communal use of apartment 8B.

SUMMARY JUDGMENT

The Court rejects petitioner's contention that respondents' motion must be denied for failure to comply with CPLR 3212(b). The fact that respondents' proof is placed before the Court by way of an attorney affirmation annexing respondents' deposition testimony does not defeat their right to summary judgment. Olan v. Farrell Lines Incorporated, 64 NY2d 1092(1985); see also Lewis v. Safety Disposal System of Pennsylvania, 12 AD3d 324 (1st Dept 2004).

Summary judgment is a drastic remedy which a court should employ only when there is no doubt as to the absence of triable issues of fact. Andre v. Pomeroy, 35 NY2d 361 (1974). For a party to obtain summary judgment, it is necessary that the movant establish his/her cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in the movant's favor. Friends of Animals, Inc. v. [*4]Associated Fur Mfrs., Inc., 46 NY2d 1065 (1979).

JUDICIAL ESTOPPEL

Where a party assumes a central position in a legal proceeding, and succeeds in maintaining that position, he/she may not thereafter, simply because his/her interests have changed, assume a contrary position. Davis v. Wakelee, 156 US 680 (1895). It is to be distinguished from collateral estoppel which assumes a full and fair opportunity to litigate the issue in the prior action. Kaufman v. Lilly Co., 65 NY2d 449 (1985). The doctrine rests upon the principle that a litigant should not be permitted to lead a court to find a fact one way and then contend in another judicial proceeding that the same fact should be found otherwise. The policies underlying preclusion of inconsistent positions are generally considerations of the orderly administration of justice and regard for the dignity of judicial proceedings. Environmental Concern v. Larchwood Construction Corp., 101 AD2d 591 (2nd Dept 1981), citing Note, The Doctrine of Preclusion Against Inconsistent Positions in Judicial Proceedings, 59 Harv. L. Rev. 1132). If the true facts were unknown, or at least open to conjecture, at the time of the previous trial, the doctrine should not be applied. Similarly, a party should not be able to benefit from the doctrine if he/she conspired in the establishment of the prior false position since the interest in having objective truth presented outweighs the value of the deterrent effects barring a showing of the truth. Id. at 1134; O'Sullivan v. Knop, 195 So. 366 (La 1940).

The doctrine of inconsistent positions does not apply to the facts at bar. First, the Stipulation was not "so ordered" by the court. Thus, it cannot be said that the list attached as an exhibit to the Stipulation reflected an attempt by respondents to mislead the court to its advantage. Moreover, respondents' had successfully won summary judgment dismissing the holdover proceeding. Their cross-appeal related to the dismissal of their counterclaim for an abatement of rent. Given the procedural posture of the prior holdover proceeding, respondents had little incentive to engage in such malfeasance.

Second, the actual use of each of the apartments was open to conjecture at the time the Stipulation was executed by the parties. As noted by Judge Lobis, "[p]etitioner lacks specific information as to the use and occupancy of the individual apartments. Respondents have admitted that each apartment unit is not utilized as a separate residence and that the names of the mailboxes do not currently reflect the occupants." Nothing in the Stipulation purports to resolve the issue of how each apartment was utilized, but simply listed the occupants of the space designated by the apartment numbers.

Third, this Court finds that both parties played a part in any misrepresentation regarding the configuration and/or use of the apartments. On the one hand, as the drafter of the list of occupants, respondents were in the best position to see that the 1989 Stipulation reflected the correct facts. On the other hand, in his affidavit dated November 11, 1988, petitioner's managing agent acknowledged that based on his personal observation apartment 8B contained the respondents' common kitchen, dining room and chapel. He also affirmed that "[a]partment 10B [was] the Community's office, where it kept its records and where visitors were generally directed." The managing agent also attached a memo with a list of occupants, apartment numbers and length of [*5]occupancy. In a footnote, this memo indicated that apartments 4D/4E and 7A/7J had been combined.

With this information, petitioner's managing agent was clearly placed on notice of the combination of certain apartments and the communal use of apartment 8B. He also had knowledge that apartment 10B was used as an office. Yet, petitioner did not challenge the apartment designations submitted by respondents as incorrect or initiate further investigation to determine the actual use and configuration of the apartments.

MODIFICATION OF THE STIPULATION

This Court disagrees with petitioner that allowing the trial court to determine whether apartments 4E/4D and 7A/7J had been combined in 1969 and the actual usage of apartment 8B would constitute a modification of the Stipulation.

Then as now, petitioner consistently treated each apartment as a separate unit with its own registered rent. See Exhibit D to the Cross-Motion. Respondents likewise viewed each apartment as separate units as reflected in the labeling of the mailboxes. The Stipulation did not contain any representations as to configuration and usage of the apartments. This is notable given petitioner's notice as to the combination of certain apartments and the usage of others as communal living space and dedicated office space. Regarding this usage, Judge Lobis also held that "...the use of certain apartments as common areas for the residents is not sufficient to defeat respondents motion to dismiss the petition."

While a court will not make a contract for the parties, it will, where justice and expediency demand, infuse the contract with the spirit of good faith and fair dealing in order to justify the implication of a covenant which will prevent one party from impairing the right of the other party to receive the fruits of the contract. Price v. Spielman Motor Sales Co., Inc., 261 AD 626 (2nd Dept 1941). As was said in Wood v. Lucy, Lady Duff-Gordon, 222 NY 88, 91: The law has outgrown its primitive stage of formalism when the precise word was the sovereign talisman, and every slip was fatal. It takes a broader view today. A promise may be lacking, and yet the whole writing may be 'instinct with an obligation,' imperfectly expressed.

Given petitioner's notice of certain facts and those facts adduced by Judge Lobis, a trial court could determine that it was the intent of the parties to acknowledge the occupancy of the designated individuals without regard to the actual configuration and usage of the apartments. If so, it would not be unreasonable to infuse in the contract the covenant that the configuration of apartments 4D/4E and 7A/7J would remain as it was at the time the Stipulation was executed. Likewise, the communal use, if proven to exist in 1989 or before, would also be preserved. This determination would not constitute a modification of the Stipulation, but would be an appropriate enforcement of the parties' intentions consonant with established principles of contract law.

[*6]REMITTITUR/REMAND

The trial court lacks power to deviate from the mandate of the higher court and must render judgment in conformity therewith. Any order must conform strictly to the remittitur and cannot be modified or set aside by the trial court. Barton Realty Corp. v. Mangan, 25 AD2d 730 (1st Dept 1966); Trager v. Kampe, 16 AD3d 426 (2nd Dept 2005). In U.S. v. Pink, 36 NYS2d 961 (Sup Ct NY Co 1942), the court held: the inferior court is bound by the decree as the law of the case; and must carry it into execution, according to mandate. They cannot vary it, or examine it for any other purpose than execution; nor give any other or further relief; nor review it upon any matter decided on appeal, for error apparent; nor intermeddle with it, further than to settle so much as has been remanded.

The Appellate Term held: "[t]o the extent the same occupants remain in possession and continue to utilize the same apartments as their primary residence, the facts have not changed since the dismissal of the prior holdover proceeding and stipulation of settlement." The mandate to the trial court is to determine whether the facts that existed in 1989 remain the same in 1998. One part of that inquiry is whether those occupants designated in the Stipulation were still in occupancy. The other inquiry must be which apartment or apartments they were in possession of at the time of the Stipulation. It cannot be gainsaid that if the designated occupant is still in occupancy, he is entitled to continue enjoying the same rights he had in 1989 or before. See Sharp v. Melendez, 139 AD2d 262 (1st Dept 1988); Bianchi v. DHCR, 5 AD3d 303 (1st Dept 2004).

To hold otherwise would lead to the anomalous result that the occupant designated in the Stipulation would be entitled to remain in possession based on the facts as they were in 1989 or even 1969, but would be deprived of a significant portion of the dwelling space he has potentially enjoyed since that date. Likewise, if apartment 8B was actually utilized as communal space, it would be inequitable to allow petitioner to take back that space based on an incorrect statement of the facts for which both parties must share the blame.

Based on the foregoing, the Court hereby denies the motion and cross-motion for summary judgment. The proceeding is restored to the Part E Calendar on August 18, 2005, Room 107 at 9:30 AM for trial.

The Court shall mail courtesy copies of its decision/order to counsel.

Dated: July 20, 2005________________________

New York, New YorkKEVIN McCLANAHAN, J.H.C.

[t:society of jesus.7.19.05] Footnotes

Footnote 1: Respondents submit proof and ask this Court to make a determination on only five of the twelve remaining apartments. Petitioner seeks a summary judgment with respect to three of the remaining twelve apartments.