This is a holdover proceeding. The premises at issue is a rent-stabilized apartment. Petitioner alleges that it is the landlord, that the tenant of record died, and that the respondents do not have a right to possession. By counsel, respondents interposed an answer but only respondent Rebekah Kennedy ("respondent") claims a right to possession. She asserts that the tenant of record was her mother, that they lived together at the premises for the two years immediately preceding her mother's death, and therefore that pursuant to the Rent Stabilization Code she has a right to succeed to her mother's tenancy. Now petitioner moves for summary judgment and other relief. As set out below, the motion is granted, a judgment of possession shall be entered in favor of petitioner and a warrant may issue forthwith, but such issuance shall be without prejudice to any application for relief under RPAPL § 753.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Zuckerman v City of New York, 49 NY2d 557, 562 (1980). Here, the moving papers show that petitioner is the landlord of the premises (an apartment on 77th Street), that the [*2]tenant of record was Lee Ann Kennedy, that she died on May 15, 2005, that the last lease for the premises was a two-year renewal ending on December 31, 2005, that the premises is located in a multiple dwelling that is duly registered with the Department of Housing Preservation and Development of the City of New York, that the premises (and the rent therefor) is duly registered as rent-stabilized with the Division of Housing and Community Renewal of the State of New York, and that a predicate notice of termination, notice of petition, and petition were duly served.

The moving papers also show (I) that pursuant to a sublease agreement dated December 14, 2002 and signed by the instant respondent, she resided from January 1, 2003 through December 31, 2003 in a residential apartment on 86th Street, (II)(i) that in 2004 the landlord of the 86th Street apartment brought a holdover proceeding against the instant respondent (and others) in this court under the caption SAB Associates v Kenneth J. Kennedy et al., index number 61099/04, (ii) that in her answer therein the instant respondent admitted that she was in possession of the 86th St. apartment and claimed a right to continue her possession thereof after December 31, 2003, and (iii) that in that litigation, by a stipulation of settlement dated December 8, 2004 that was "so ordered" by the court and that included a consent judgment, and which stipulation the instant respondent and her counsel signed, she represented that she resided in the 86th Street apartment and that she would vacate the same by January 31, 2005.

The moving papers also show that pursuant to a lease made on February 3, 2005 that is signed by the instant respondent, she became the residential tenant of an apartment on 101st Street for a period of two years beginning February 1, 2005. The court holds that the moving papers make a sufficient showing of petitioner's prima facie case.

"[W]here the moving party has demonstrated its entitlement to summary judgment, the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for [the] failure to do so * * * " Zuckerman v City of New York, 49 NY2d 557, 560 (1980). Under Rent Stabilization Code [9 NYCRR] §§ 2520 et seq. a family member (such as a daughter) of a tenant of record who has died or otherwise left the premises may succeed to possession thereof if the family member maintained the same as her primary residence for the two years preceding the tenant's departure. Here, respondent avers that the premises has been her [*3]primary residence for virtually her entire life. She concedes that she lived for an unspecified time in Pittsburgh, Pennsylvania during her first marriage, but asserts that upon the marriage's demise she returned to the premises in September, 2002 and that the premises has been her primary residence ever since.

With respect to the two years immediately preceding her mother's death, respondent's exhibits provide some documentary support: a copy of a card from the Board of Elections of New York City showing that she used the premises as her address when she registered on October 6, 2004 to vote; a copy of a marriage certificate dated October 20, 2004 showing that she used the premises as her address when she registered for her second marriage on October 19, 2004; and copies of cover pages from what she alleges are her state and federal income tax returns for the years 2003, 2004, and 2005 showing the premises as her address for those calendar years ^[FN1]. However, the tax return exhibits are not dated and they are not signed by respondent, by her husband, or by anyone else. As well, copies of W-2s (and/or 1099s) are not annexed, yet respondent reported, for example, over $16,000.00 in "wages, salaries, and tips" in 2005. The court notes as well that respondent's opposition does not include an affidavit from respondent's husband.

In her affidavit, respondent also alleges that she has other documents that show her residence at the premises, but the court holds that this allegation is unavailing because a party opposing a motion for summary judgment must lay bare its proof. Dodwell & Co. Ltd v Silverman, 234 AD 362, 363 (1st Dep't, 1932). Respondent also offers the affidavit of Kassimis, i.e., the executrix of Lee Ann Kennedy's estate, which alleges that respondent lived with her mother for the two years before May 15, 2005. However, this allegation is only conclusory and is not substantiated by any showing that Kassimis might have any knowledge of respondent's primary residence.

With respect to the 86th Street apartment, respondent asserts that she never lived there, and that instead she sublet the same to cover for a Kelly Collins, whom respondent describes in her affidavit as her "best friend," who wanted to move to Manhattan from Queens. The court notes, however, that respondent's opposition does not include an affidavit from Ms. Collins. With respect to the 101st St. [*4]apartment, respondent alleges that she rented that apartment not to live there but so that she might have a place to conduct a business. The court notes, however, that the lease for that apartment provides that it is to be used for residential purposes, and that in her application to rent the 101st St. apartment respondent gave the 86th St. apartment, and not the premises, as her address.

The doctrine of judicial estoppel, sometimes known as the doctrine of inconsistent positions, "precludes a party from framing pleadings in a manner which is inconsistent with a position taken in a prior judicial proceeding * * * " Kimco of New York, Inc. v Devon, 163 AD2d 573, 574 (2nd Dep't, 1990). The rationale for the doctrine is that litigants ought not to be 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 * * *", Environmental Concern Inc. v Larchwood Construction Corp., 101 AD2d 591, 593 (2nd Dep't, 1984).In a prior judicial proceeding, i.e., SAB Associates v Kenneth J. Kennedy et al., supra, the instant respondent alleged twice once her verified answer and again the stipulation that she (and the other parties) submitted to the court to be "so ordered" that she resided during 2003 and 2004 in the 86th St. apartment.

The court holds that these judicial admissions estop respondent from asserting here the inconsistent position that during 2003 and 2004 she resided elsewhere, i.e., at the premises. Inasmuch as respondent may not maintain here that she resided at the premises during 2003 and 2004, the court holds that as a matter of law respondent will not be able to establish her claim that she lived at the premises for the two years immediately preceding May 15, 2005 and thus is entitled to succeed to the tenancy of the tenant of record.

Accordingly, the court grants petitioner's motion for summary judgment. A judgment of possession shall be entered in favor of petitioner and a warrant may issue forthwith, but such issuance shall be without prejudice to any application for relief under RPAPL § 753.

The court will mail copies of this decision and order to the parties.

DATED: January 25, 2008

New York, New York

GARY F. MARTON, J.H.C.