Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:Papers NumberedNotice of motion and affidavits annexed 1Order to Show Cause and affidavits annexedAnswering affidavits 2Replying affidavits 3ExhibitsStipulationsOtherDECISION/ORDER Respondent moves for dismissal of the within holdover summary proceeding under CPLR 3212, 3211(a)(7), 3013 and RPAPL 741, alleging that the petition fails to state a cause of action as petitioner is judicially estopped from bringing the proceeding by alleging respondent is an unregulated tenant and is not an owner of the shares to this cooperative apartment, having claimed exactly the opposite in two prior proceedings. Petitioner opposes the motion alleging it was simply a mistake made due poor record keeping and that it now knows that respondent is not a shareholder as it has obtained records from the NYC Dept. Of Housing Preservation and Development showing that neither respondent, nor her deceased husband, had purchased the shares of stock allocated to the subject apartment, and that no other lease with respondent existed, thus she is an unregulated tenant subject to summary eviction.In a holdover proceeding under L&T index no. 059433/16, petitioner alleged in the petition therein at 6 that “The premises is not subject to the Rent Stabilization Law of 1969, nor to the City Rent Law as it is owned and operated by a cooperative corporation of which respondent is a member.” (Emphasis added). And, in the Notice of Termination that served as the predicate notice to that proceeding petitioner stated “The grounds under the terms of your proprietary lease upon which your landlord relies for your removal or eviction and the termination of you leasehold is…” (Emphasis added). Though no judgment was entered in that proceeding, there was a stipulation of settlement that was so ordered by the Hon. Kimon Thermos, thus putting the imprimatur of the Court on petitioner’s claim of respondent’s status as a shareholder and the underlying basis for the proceeding. Then, under L&T index no. 019395/17, petitioner instituted yet a second holdover proceeding against respondent using the exact same allegations set forth in the 2016 proceeding cited above. In that proceeding respondent was represented by BOOM! Health Legal Services, who subsequently merged into Mobilization for Justice, and on a motion to dismiss alleging no lease, petitioner allowed the proceeding to be dismissed on default, and now acknowledges that it can find no lease for respondent of any sort.It is clear, from reading the pleadings in the prior two proceedings, that they were predicated upon respondent being an owner, and in at least one of those proceedings petition obtained relief. The case law is quite clear that a party cannot take inconsistent positions in proceedings and seek relief from the courts on both of those positions in separate proceedings. In Jones Lang Wootton USA v. LeBoeuf, Lamb, Greene & MacRae, 243 A.D.2d 168, 674 N.Y.S.2d 280, 1998 N.Y. Slip Op. 03506, 1998 N.Y. Slip Op. 03507 (AD 1st Dept, 1998) at 176, the Court stated: “The doctrine of judicial estoppel or the doctrine of inconsistent positions “precludes a party who assumed a certain position in a prior legal proceeding and who secured a judgment in his or her favor from assuming a contrary position in another action simply because his or her interests have changed” (Ford Motor Credit Co. v. Colonial Funding Corp., 215 AD2d 435, 436 ). As stated by the United States Supreme Court, “where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position” (Davis v. Wakelee, 156 US 680, 689). ‘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” (Environmental Concern v. Larchwood Constr. Corp., 101 AD2d 591, 593, quoting Note, The Doctrine of Preclusion Against Inconsistent Positions in Judicial Proceedings, 59 Harv L Rev 1132).” (Emphasis added). And in Environmental Concern v. Larchwood Constr. Corp., 101 A.D.2d 591, 476 N.Y.S.2d 175 (AD, 2nd Dept, 1984), cited in Jones, supra, the Court stated at 592: “…the doctrine of estoppel against inconsistent positions precludes a party from “framing his *** pleadings in a manner inconsistent with a position taken in a prior proceeding” (Note, The Doctrine of Preclusion Against Inconsistent Positions in Judicial Proceedings, 59 Harv L Rev 1132; see, also, Beck, Estoppel Against Inconsistent Positions in Judicial Proceedings, 9 Brooklyn L Rev 245; Ferrandino v. Cartelli, 12 AD2d 604). 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.”In Ennismore Apts., Inc. v. Gruet, 29 Misc.3d 48, 909 N.Y.S.2d 861, 2010 N.Y. Slip Op. 20377 (AT1st, 2010), it was stated that “Respondent is judicially estopped from asserting that he primarily resided at the subject unit for the relevant time period — the two-year period immediately prior to the death of the tenant — since, in a prior holdover proceeding, he asserted in a verified answer that he was the tenant of record of and primarily resided in another, rent-controlled apartment on West 88th Street during that same period “. It appears from the case law that the issue in dispute, here whether or not respondent was a shareholder or an unregulated tenant, must have been germane to the result the party asserting the “facts” was trying to obtain. Unfortunately for petitioner, due to poor or sloppy record keeping, it has acted as, and treated respondent as, a shareholder and predicated its previous proceedings against her on that basis. This is a hole petitioner dug for itself and now it needs to obtain a judicial settlement of title before it can sustain a summary proceeding against respondent.This Court has no doubt that respondent is not an owner nor a shareholder of the subject apartment. Her claim that she thinks she remembers seeing a stock certificate with her name on it in the past is so ridiculous as to be laughable. Why not claim she saw a deed to the entire building with her name on it and go for broke, it would have as much validity and probative value as her statement here, which is none. But, this is a Court of Limited jurisdiction and determining issues of title or ownership is not within its jurisdiction. Petitioner needs to obtain a judicial order settling title of respondent’s apartment before it can proceed with a summary proceeding for her eviction.Accordingly, respondent’s motion is granted, the proceeding is dismissed without prejudice to the institution of a new proceeding once tile to the subject apartment has been determined by a court of competent jurisdiction.This is the decision and order of the Court. Copies are being mailed to both sides.Dated: May 24, 2019Bronx, New York
