Opinion
570261/03.
Decided March 31, 2004.
Tenant appeals from an order of the Civil Court, New York County, entered December 2, 2002 (Maria Milin, J.) denying his motion for attorneys' fees in a holdover summary proceeding.
Order entered December 2, 2002 (Maria Milin, J.) affirmed, with $10 costs.
PRESENT: HON. LUCINDO SUAREZ, P.J., HON. WILLIAM J. DAVIS, HON. MARTIN SCHOENFELD, Justices.
After prevailing at a jury trial in this owner-use proceeding, tenant sought to recover attorneys' fees pursuant to Real Property Law § 234 on the basis of a fees provision set forth in several renewal lease. Neither side could produce the original 1970 lease. In pretrial motion practice, tenant had successfully opposed landlord's attempt to enforce a jury waiver provision in the same renewal leases absent a showing of compliance with Rent Stabilization Code (9 NYCRR) § 2522.5(g) that the renewals were "on the same terms and conditions as the expired lease." In denying the motion to strike the jury demand, Civil Court (Laurie Lau, J.) observed, in part, that "[t]he Court cannot speculate as to what may or may not be in such [initial] lease and renewals are on the same terms as the original".
We affirm Civil Court's denial of attorneys' fees. "Under the doctrine of judicial estoppel, or estoppel against inconsistent positions, 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, 270 AD2d 192, 193, citing Maas v. Cornell Univ., 253 AD2d 1, 5, affd 94 NY2d 87). Having opposed landlord's reliance on the jury waiver provision contained in the renewal leases, because there was no proof that the same provision was contained in the original expired lease, tenant should not now be permitted to choose a provision in the renewal leases favorable to him absent the same proof previously demanded of landlord, namely, that the clause was in the original expired lease.
This constitutes the decision and order of the court.