Petitioner, as limited by its brief, appeals from an order of the Civil Court, New York County (Jean T. Schneider, J.), entered on or about December 21, 2004, which denied its motion for summary judgment in a holdover summary proceeding. Respondent cross-appeals from so much of the aforesaid order as denied his motion for summary judgment dismissing the petition and directed him to furnish a further bill of particulars.

Per Curiam:

Order (Jean T. Schneider, J.), entered on or about December 21, 2004, affirmed, without costs.

This holdover proceeding is not susceptible to summary disposition. A triable issue of fact exists as to whether respondent, the son of the rent controlled tenant, primarily resided with the tenant of record for two years immediately prior to the permanent departure of the tenant, so as to entitle him to succession rights (see New York City Rent and Eviction Regulations [9 NYCRR] § 2204.6 [d][1]). Contrary to petitioner's claim, any inconsistent statement made by respondent's father in a prior holdover proceeding does not warrant application of the doctrine of judicial estoppel, inasmuch as the prior proceeding did not result in any "favorable judgment" and was, in fact, discontinued (see River York Stratford, LLC v Linderman, 2004 NY Slip Op 50800U [2004]).

This constitutes the decision and order of the court. [*2]
Decision Date: April 21, 2006