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Schwartz v. Lambise

Other Lower Courts

December 31, 2007

William Schwartz and Peggy Schwartz, As Equal Tenants-In-Common, Petitioner-Landlord,
Fred Lambise and Pat Meyer, Respondent-Tenant.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.


Attorney for Petitioner: Fischman Fischman, Doreen J. Fischman, Esq.

Attorney for Respondent: Sokolski Zekaria, PC, David Zekaria, Esq.


Pam B. Jackman-Brown, J.

This holdover proceeding was commenced on the assertion that the Petitioners wished to recover the Respondents' rent stabilized apartment for their personal use. By decision and order dated November 7, 2006, the Petitioners' motion to restore the matter to the calendar was denied and the Respondents' cross-motion for summary judgment was granted on the ground that the predicate notice of non-renewal was legally insufficient. At the conclusion of the decision, the Court held that the Respondents were the "prevailing parties" but had not shown an entitlement to legal fees pursuant to RPL 234. However, the Court stated that they may "renew their claim therefor upon such showing accompanied [by] a statement that itemizes any such claim."

Petitioners filed a notice of appeal of that decision, but failed to perfect such appeal. Respondents now move to restore this matter to the calendar for a hearing on their claim for $12,593.28 in legal fees, citing "judicial estoppel" as grounds for recovery. Petitioners oppose this motion and cross-move for leave to amend their pleadings to withdraw their claims for legal fees.

Pursuant to RPL 234, there is an implied covenant in residential leases to pay prevailing tenants' legal fees where the lease "shall provide that in any action or summary proceeding the landlord may recover attorneys' fees . . . " The Respondents in this matter have been unable to produce the initial 1992 rental agreement for the subject apartment and do not recall details of that lease, other than to recite that there was a lease which "included a provision allowing the landlord to recover attorneys' fees . . . " (Par. 5 affidavit in support by Pat Meyer). However, they assert that the court may still award them legal fees on the theory of "judicial estoppel" due to their reliance upon admissions in the petition submitted by their landlords, and assert that they might have charted a different course of defense against this matter if they had known that they would not be able to recover attorneys' fees if victorious in their defense.

In support of their motion, Respondents rely upon paragraph 16 of the petition, which states: "Pursuant to the terminated lease between the parties, the Petitioner is entitled to the reasonable value of the legal fees incurred in the successful prosecution of the instant proceeding in an amount to be determined by the Court, but estimated to equal at least $5,000;" the final paragraph of the petition further requests a judgment for "... (d) legal fees in an amount to be determined ..." The matter of East Egg Assoc. v Diraffaele (158 Misc.2d 364 [Civ Ct, NY County 1993], affd 160 Misc.2d 667 [App Term, 1st Dept 1994]) sets forth facts and circumstances nearly identical to the case at bar; neither party was able to produce the applicable lease but the petition contained a clause clearly and unequivocally demanding the award of legal fees. Citing Richardson on Evidence 216 (Prince 10th ed), the Court stated, at 366, "Facts admitted by the pleadings constitute one of the most important examples of formal judicial admissions[.]" and continued to find that the petitioner could not disavow the allegations set forth in its verified petition. Therefore, the Court held that the petitioner had admitted the fact that there was a lease with a legal fee provision, and production of the lease was not required to award fees to the prevailing respondent.

Respondents further rely on Nestor v Britt (270 A.D.2d 192 [1st Dept 2000]) and Evans v Schneider (2 Misc.3d 139 [A], 2004 NY Slip Op 50268 [U]). The Court in Nestor v Britt refused to permit a petitioner to produce a 1970 lease (which did not contain a legal fee provision) in opposition to the Respondents' motion for attorneys fees, after the petitioner had unsuccessfully relied upon a 1983 lease between the parties, which contained a legal fee provision, for its prima facie case. In the Evans matter, the tenant opposed the petitioner's reliance upon a renewal lease which contained a jury waiver clause, where the original lease did not contain that clause; however, the tenant then elected to rely on the renewal lease when seeking attorneys' fees as the prevailing party, since the original lease had no such fees provision. In denying the tenant's request for fees, the Court held that: " Under the doctrine of judicial estoppel ... a party is precluded from inequitably adopting a position directly contrary to or inconsistent with an earlier assumed position in the same proceeding (Nestor v Britt, supra, at193,quoting Maas v Cornell Univ., 253 A.D.2d 1, 5, affd 94 N.Y.2d 87)." Judicial estoppel was also applied in the Appellate Term, First Department decision of Samra v Rosen (12 Misc.3d 145 [A], 2006 NY Slip Op 51472 [U]), where a tenant relied upon a lease to her advantage in one matter and then attempted to disavow the same lease in a subsequent proceeding.

In the instant case, Petitioners insist that these cases do not apply because there never was a lease between the parties containing a clause for attorney fees. Petitioner Peggy Schwartz argues in her affidavit, which includes legal arguments and case citations, that she in fact never executed a written rent-stabilized lease with the Respondents, as alleged throughout her verified petition (and required by the rent stabilization laws), but that she mistakenly used only a rent stabilized renewal form as an initial rental agreement in 1992 (although she cannot produce this document at this time). It is her assertion that all of the cases cited by the Respondents involved actual leases which have simply been lost, and therefore their holdings cannot be applied to this matter. Ms. Schwartz further argues that the statements in the petition referring to the lease were "inadvertent mistakes" which cannot be used against her at this time. Petitioners' attorney argues the same points as her client and does not address the issue of "judicial admissions" as a bar to denying the existence of a lease provision, until her reply brief, where she argues that the Respondents' general denial in their answer should be viewed as a judicial admission that there was no lease and no right to attorney fees for the petitioner (of course the general denial was followed by a specific counterclaim seeking to enforce the legal fee's provision as asserted in the petition).

The reply affidavits of Ms. Schwartz and her attorney further cite Corastor Holding Co., Inc v Nasteny (12 Misc.3d 13 [App Term, 2d Dept 2006]) as directly on point to the case at bar. However, the petition in that matter stated that the subject apartment was subject to the Loft Law when it was not in fact subject to that statute. Such a misstatement of the legal status of the apartment, the Court held, cannot be viewed as a judicial admission; rather it is an amendable error, as the parties could not by agreement or otherwise make the premises subject to a regulatory status for which it did not qualify.This holding cannot be compared to instant case where the petition discusses a contractual obligation between the parties to pay attorney fees, with no relation to the regulatory status of the premises.

This Court also does not find that the cited matter of Partnership 92 West, L.P., v Woods (186 Misc.2d 445 [App Term, 1st Dept 2000]) applies. In that matter, at 446, the Court stated that: "Unlike East Egg Associates v Diraffaele, (citation omitted), the petition herein did not allege the existence of a rental agreement in which ...

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