Opinion
June 7, 1993
Appeal from the Supreme Court, Nassau County (Winick, J.).
Ordered that the order is affirmed, with costs.
The defendants contend that the complaint should be dismissed pursuant to the doctrine of judicial estoppel because the plaintiff apparently took inconsistent positions in this case and in a separate Federal action to recover an alleged over-payment of income taxes (see generally, Matter of Belfatto Pavarini v Providence Rest Nursing Home, 182 A.D.2d 754; Anonymous v Anonymous, 137 A.D.2d 739; Kasmarski v. Terranova, 115 A.D.2d 640). However, since the Federal court rejected the position adopted by the plaintiff in that case and ultimately ruled against him, the doctrine of estoppel against inconsistent positions is not applicable herein (see, Northern Metro. Residential Health Care Facility v. Ledri Realty Assocs., 179 A.D.2d 133; Kalikow 78/79 Co. v. State of New York, 174 A.D.2d 7; see also, Piedra v Vanover, 174 A.D.2d 191; Kimco of N.Y. v. Devon, 163 A.D.2d 573; Environmental Concern v. Larchwood Constr. Corp., 101 A.D.2d 591).
In any event, we agree with the Supreme Court that summary judgment on the ground of judicial estoppel would be improper in this case because the plaintiff's commencement of the Federal action was premised entirely upon some highly questionable documentary evidence produced by the defendants during discovery which made the plaintiff believe that he might have a valid tax claim. Moreover, the record clearly establishes that the plaintiff commenced the Federal action in order to protect his potential claim from becoming time-barred while he awaited the outcome of the instant action. Under these circumstances, the Supreme Court acted properly in denying the defendants' motion. Sullivan, J.P., Eiber, O'Brien and Pizzuto, JJ., concur.