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United E. LLC v. Churi

Supreme Court of New York, Appellate Division, First Department

June 22, 2009

United East LLC, Petitioner-Landlord-Respondent,
v.
Maya Churi and Michael Jones, Respondents-Tenants-Appellants, Ariel Churi, Amy Parness,"John Doe" and "Jane Doe," Respondents-Undertenants- Appellants.

McKeon, P.J., Schoenfeld, Heitler, JJ.

Tenants and respondents Ariel Churi and Amy Parness appeal from an order of the Civil Court of the City of New York, New York County (Gerald Lebovits, J.), dated March 13, 2008, which, in a holdover summary proceeding, granted petitioner-landlord's motion to dismiss the second affirmative defense contained in the combined answer.

PER CURIAM.

Order (Gerald Lebovits, J.), dated March l3, 2008, reversed, with $10 costs, and landlord's motion to dismiss the second affirmative defense is denied.

Although the statement set forth in the bill of particulars jointly provided by all respondents that tenants have not yet "permanently vacated" the stabilized apartment premises and the succession defense interposed by undertenant Ariel Churi in the combined answer are inconsistent, inconsistent defenses may be pleaded in the alternative (see CPLR 3014; Anamdi v Anugo, 238 A.D.2d 366 [1997]; see also Matter of Kern v Guller, 40 A.D.3d 1231 [2007]; Jeremy's Ale House Also, Inc. v Joselyn Luchnick Irrevocable Trust, 22 A.D.3d 6, 10 [2005]). To the extent that the statement contained in the bill of particulars as to the tenants' occupancy status can be viewed as an informal judicial admission by Churi, the statement does not serve as a conclusive bar to Churi's facially viable succession claim, since an informal judicial admission is merely some evidence of the fact or facts "admitted," and may be explained at trial (see TMB Communications v Preefer, 61 A.D.3d 450 [2009]; Prince, Richardson on Evidence, § 8-219 [Farrell, 11th ed]). Thus, at this pleading stage, Churi's succession claim embodied in the second affirmative defense should not have been summarily dismissed.


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