MH Residential 1 v Waitman

[*1] MH Residential 1 v Waitman 2013 NY Slip Op 51680(U) Decided on October 15, 2013 Appellate Term, First Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 15, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Shulman , JJ
570546/12.

MH Residential 1, LLC, MH Residential 2, LLC and MH, Commercial LLC, as Tenants in Common, Petitioners-Landlords-Respondents,

against

Adam Waitman, Respondent-Tenant-Appellant, "John Doe" and "Jane Doe", Respondents.

Respondent Adam G. Waitman appeals from (1) so much of an order of the Civil Court of the City of New York, New York County (Laurie L. Lau, J.), entered March 5, 2012, as denied his motion for leave to conduct discovery in connection with his affirmative defense of retaliatory eviction in a holdover summary proceeding, and (2) a final judgment (same court and Judge), entered on or about April 20, 2012, after a nonjury trial, which awarded possession to petitioners.

Per Curiam.

Final judgment (Laurie L. Lau, J.), entered on or about April 20, 2012, reversed, with $30 Costs, and matter remanded to Civil Court for further proceedings on the holdover petition. Appeal from order (Laurie L. Lau, J.), entered March 5, 2012, dismissed, without costs, as subsumed in the appeal from the final judgment. The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the final judgment (see CPLR 5501[a][1]).

For the reasons stated in this Court's prior decision on a separate but related appeal (see MH Residential I, LLC v Barrett, ___ Misc 3d ___, 2013 NY Slip Op 23062 [App Term, 1st Dept 2013]), we sustain the denial of respondent-appellant's motion for leave to conduct discovery, while vacating the possessory judgment issued in petitioners' favor and remanding the matter for further proceedings in connection with appellant's defense of retaliatory eviction. As was the case in the previously decided appeal, Civil Court's sua sponte excursion into the viability of appellant's retaliatory eviction defense in disposing of his discovery motion effectively and improperly precluded him from pursuing that defense. [*2]

However, we reject, as did Civil Court, appellant's contention that petitioners' maintenance of this lease expiration holdover proceeding is foreclosed by appellant's claimed status as a month-to-month tenant. Petitioners were not shown to have accepted rent from appellant so as to create a monthly tenancy, since, appellant's tenders are properly treated as use and occupancy payments required under the terms of the parties' June 8, 2007 so-ordered stipulation. Not does the doctrine of judicial estoppel bar petitioners from denying appellant's putative tenancy status. Significantly, petitioners did not obtain any formal grant of relief as a result of their claims in the related Supreme Court ejectment action between the parties (see Baje Realty Corp. v Cutler, 32 AD3d 307, 310 [2006]) and the allegations advanced by petitioners in their complaint in the ejectment action — verified by petitioners' counsel "upon information and belief" — do not constitute formal or informal judicial admissions (see Sound Communications, Inc. v Rack and Roll, Inc., 88 AD3d 523 [2011]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 15, 2013