244 W. 109th St., LLC v Diaz

244 W. 109th St., LLC v Diaz 2009 NY Slip Op 29468 [26 Misc 3d 14] Accepted for Miscellaneous Reports Publication AT1 Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 3, 2010

[*1] 244 West 109th Street, LLC, Appellant,
v
Elizabeth Diaz et al., Respondents.

Supreme Court, Appellate Term, First Department, November 17, 2009

APPEARANCES OF COUNSEL

Cutler Minikes & Adelman, LLP, New York City, for appellant. Adam Leitman Bailey, P.C., New York City, for Tony Diaz, respondent.

{**26 Misc 3d at 14} OPINION OF THE COURT

Per Curiam.

Final judgment, entered on or about January 26, 2009, reversed, with $30 costs, and final judgment awarded to petitioner landlord. Issuance of the warrant of eviction shall be stayed for 30 days from the service of a copy of this order with notice of entry.

The jointly represented respondents, mother and son, effectively waived the succession defense initially interposed on behalf of respondent Tony Diaz by stipulating during discovery that respondent tenant Elizabeth Diaz did not at any time permanently vacate the demised stabilized apartment and actively, albeit unsuccessfully, contesting the nonprimary residence claim advanced by landlord against tenant (cf. United E. LLC v Churi, 24 Misc 3d 80 [2009]). "While parties are accorded considerable latitude in charting their procedural course before the courts . . . they are bound by the consequences attendant upon the exercise of that prerogative" (Sean M. v City of New York, 20 AD3d 146, 150 [2005] [citations omitted]).

The court's conduct in resurrecting the previously abandoned succession defense caused substantial prejudice to landlord, which had eschewed discovery and cross-examination of respondents on the succession issue in reliance on their litigation position. Even were the succession issue properly considered on the merits, the court's finding that tenant permanently vacated the apartment in 1989requiring the conclusion that tenant left her then 12-year-old son alone in the apartmentis unsupported by the trial evidence.

McKeon, P.J., Shulman and Hunter, JJ., concur.