Nestor v. Britt, 16 Misc. 3d 368 (2007)

Citation: Nestor v. Britt, 16 Misc. 3d 368 (2007)
Parent Document: Nestor v. Britt, 16 Misc. 3d 368 (2007)
Jurisdiction: New York (state)
Effective Date: 2007-04-23
Original Source: https://www.courtlistener.com/opinion/6308349/nestor-v-britt/ ↗

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Respondent’s attorneys had reasons to be prudent in their research. The research required to defend petitioners’ third and fourth failed holdovers required diligence and skill because of several facts associated with the parties’ litigation. Petitioners have been found untruthful in their earlier efforts to evict respondent. (E.g. Nestor v Britt, NYLJ, Apr. 18, 1994, at 27, col 3 [noting Appellate Term’s September 1988 affirmance dismissing first owner-use holdover proceeding in which trial judge noted Peggy Nestor’s “utter lack of candor”].) Petitioners’ (prior) attorneys have been sanctioned for misleading the court in trying to evict respondent. (Matter of Nestor v New York State Div. of Hous. & Community Renewal, NYLJ, Mar. 25, 1998, at 26, col 5 [Sup Ct, NY County], mod 257 AD2d 395 [1st Dept 1999, mem], lv dismissed and denied 93 NY2d 982 [1999].) After years of Marianne Nestor’s denying under oath in eviction proceedings against respondent that she was married to Cassini, his obituaries stated in March 2006 that they had been married for 31 years, according to respondent. (See respondent’s posthearing letter mem of law at 4-5.) Petitioners have been found to argue one thing one day and the opposite the next — which led the First Department to apply the doctrine of judicial estoppel against them in a seminal case on attorney fees. (See Nestor v Britt, 270 AD2d at 192-193.) Respondent, 67 years old when petitioners served their three nonrenewal notices in 2002, was entitled as a senior not to be evicted “unless the owner offers to provide and, if requested, provides an equivalent or superior housing accommodation at the same or lower regulated rent in a closely proximate area” (Rent Stabilization Code [9 NYCRR] § 2524.4 [a] [2]), and respondent’s triplex astride Central Park would be hard to replace “at the same or lower regulated rent.” *378(See Croman v Leighton, 12 Misc 3d 73, 74 [App Term, 1st Dept 2006, per curiam] [noting that landlord-owner’s “offer of alternative accommodations . . . becomes a condition to maintaining such a proceeding once the tenant establishes that he or she is a senior citizen”].)

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