Samra v. Rosen

Full title: ELIAHU SAMRA and YAFFA SAMRA, Petitioners-Landlords-Respondents, v. TRIX…

Court: Appellate Term of the Supreme Court of New York, First Department

Date published: Jul 27, 2006

2006 N.Y. Slip Op. 51472 (N.Y. App. Term 2006)

Opinion

570658/05.

Decided July 27, 2006.

Tenant appeals from an order of the Civil Court, New York County (Peter W. Wendt, J.), dated June 27, 2005, which, in a nonpayment summary proceeding, granted landlord's motion to strike tenant's jury demand and second affirmative defense, severed tenant's counterclaim for punitive damages for breach of the warranty of habitability, and denied tenant's cross motion for partial summary judgment dismissing landlord's attorneys' fee claim.

Order (Peter M. Wendt, J.), dated June 27, 2005, modified to reinstate that portion of tenant's first counterclaim seeking punitive damages for the breach of warranty of habitability, and as so modified, affirmed, with $10 costs.

PRESENT: McCOOE, J.P., DAVIS, GANGEL-JACOB, JJ.

PER CURIAM:

Tenant is judicially estopped from disavowing the jury waiver and attorney fee provisions of the prime lease, inasmuch as she relied upon this lease to secure an award of attorney fees in a prior holdover proceeding ( see Gale P. Elston, P.C. v. Dubois, 18 AD3d 301; Nestor v. Britt, 270 AD2d 192). A litigant is not 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" ( River York Stratford, LLC v. Linderman, 4 Misc 3d 135 A, 2004 NY Slip Op 50800U [2004]). The subsequent vacatur of the attorney's fee award on unrelated grounds does not warrant a contrary result ( see Secured Equities Investments, Inc. v. McFarland, 300 AD2d 1137). Eastlite Corp. v. Barth, NYLJ, May 16, 1997, at 25, col 2 (App Term, 1st Dept), relied upon by tenant, is inappositive since that case did not involve the doctrine of judicial estoppel.

The portion of tenant's breach of warranty of habitability counterclaim seeking punitive damages ( see Minjak Co. v. Randolph, 140 AD2d 245, 249-50), should not have been severed. "A demand or request for punitive damages is parasitic and possesses no viability absent its attachment to a substantive cause of action" ( Rocanova v. Equitable Life Assur. Socy. Of U.S., 83 NY2d 603, 616). In the absence of a cross appeal by landlord, we have no occasion to consider the bona fides of tenant's counterclaim.

This constitutes the decision and order of the Court.

I concur.