American Motorists Insurance v. O'Brien-Kreitzberg & Associates, Inc.

234 A.D.2d 30, 650 N.Y.S.2d 171, 1996 N.Y. App. Div. LEXIS 12230

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 3, 1996
• Status: Published

Opinion

—Order, Supreme Court, New York County (Irma Santaella, J.), entered January 3, 1995, which denied defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

Defendant may not invoke the doctrine of judicial estoppel to avoid the agreement it entered into with plaintiff’s subrogor. The purportedly inconsistent positions taken by plaintiff’s subrogor were not advanced against defendant, but rather against other parties in matters that were entirely separate from the underlying action herein and involved different plaintiffs, different locations, different accidents and, in one instance, unrelated contracts. Beyond this failure to show that plaintiff’s subrogor took inconsistent positions, the act of settling a case is hardly equivalent to taking a position on an issue of law or fact. Concur—Milonas, J. P., Wallach, Kupferman, Tom and Andrias, JJ.