Opinion
21545
November 23, 2001.
APPEAL from so much of an order of the Civil Court of the City of New York, Queens County (Pam B. Jackman-Brown, J.), dated December 29, 2000, as denied respondent Wayne Cohen's cross motion to dismiss the nonprimary residence holdover proceeding based on a claim of a prior proceeding pending.
Philip E. Orner, Flushing, for appellant.
Scott D. Gross, Lake Success, for respondent.
SCHOLNICK, P.J., PATTERSON and GOLIA.
Memorandum. Order insofar as appealed from unanimously affirmed with $10 costs.
In this nonprimary-residence holdover proceeding, the Housing Court correctly concluded that the pendency of a prior illegal-sublet proceeding did not bar the maintenance of this proceeding. The doctrine of prior proceeding pending applies when the two proceedings are based on the same actionable wrong (CPLR 3211 [a] [4]; see, Trump Empire State Partners v. Empire State Bldg. Assocs., 245 A.D.2d 188; Parker v. Rich, 140 A.D.2d 177; Cardinal Sales v. Great Atlantic Pacific Tea Co., 89 A.D.2d 596). Inasmuch as landlord's two proceedings are not based on the same actionable wrong (see generally, Pamela Equities Corp. v. Camp, 127 Misc.2d 395), this defense is unavailable to tenant.
Tenant's claim that the doctrine of judicial estoppel precludes landlord from asserting inconsistent termination dates in the two proceedings is equally unavailing. The doctrine of judicial estoppel applies only where the party against whom it is asserted has secured a judgment in his favor in the prior proceeding (Jones Lang Wootton USA v. LeBoeuf, Lamb, Greene MacRae, 243 A.D.2d 168, 176). Here, landlord did not receive a judgment in the first proceeding and thus is not precluded from asserting an inconsistent claim in this proceeding (cf., CPLR 3014 [permitting inconsistent pleadings]).