Opinion
2001-08872
Submitted October 25, 2002.
November 12, 2002.
In an action, inter alia, to recover damages for breach of contract, the defendant Lifestyle Designs, Inc., appeals from so much of an order of the Supreme Court, Nassau County (Carter, J.), dated July 27, 2001, as denied that branch of the defendants' motion which was to dismiss the complaint insofar as asserted against it.
Douglas E. Szulman, New York, N.Y., for appellant.
Eric I. Prusan, Mineola, N.Y. (Julie Tenney on the brief), for respondents.
Before: FRED T. SANTUCCI, J.P., SANDRA J. FEUERSTEIN, CORNELIUS J. O'BRIEN, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly denied that branch of the defendants' motion which was to dismiss the complaint insofar as asserted against the defendant Lifestyle Designs, Inc. (see CPLR 3211; Leon v. Martinez, 84 N.Y.2d 83; Morone v. Morone, 50 N.Y.2d 481; Guggenheimer v. Ginzburg, 43 N.Y.2d 268). Contrary to the appellant's contentions, the purported limited warranty for the plaintiffs' new home, which was neither signed, titled, nor incorporated into the contract of sale, and which made no reference to the parties, was invalid under General Business Law article 36-B (see General Business Law § 777-b). Moreover, a subsequent release signed by plaintiffs, which referred to a "home warranty," was ambiguous and therefore did not render the purported limited warranty effective.
Contrary to the appellant's contention, the doctrine of judicial estoppel, also known as the doctrine of inconsistent positions, is inapplicable. The plaintiffs did not assert, as true, a fact that they had disproven in a prior proceeding (see Mantia v. Squire, 289 A.D.2d 304; European Am. Bank v. Miller, 265 A.D.2d 374; Douglas v. Government Empls. Ins. Co., 237 A.D.2d 246; Ford Motor Credit Co. v. Colonial Funding Corp., 215 A.D.2d 435).
The appellant's remaining contention is without merit.
SANTUCCI, J.P., FEUERSTEIN, O'BRIEN and SCHMIDT, JJ., concur.