Opinion
December 3, 1996.
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.
Before: Milonas, J.P., Wallach, Kupferman, Tom and Andrias, JJ.
Defendant may not invoke the doctrine of judicial estoppel to avoid the agreement it entered into with plaintiffs 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.