Opinion
October 19, 1995
Appeal from the Supreme Court, New York County (Walter Schackman, J.).
The IAS Court properly invoked the doctrine of judicial estoppel to preclude those counterclaims dependent upon defendant's contention that plaintiff and its foreign subsidiaries were not separate entities since defendant successfully advanced the diametrically opposite position at the trial of plaintiff's claims ( see, Kimco of N.Y. v. Devon, 163 A.D.2d 573, 574-575; see also, Dennis' Natural Mini-Meals v. 91 Fifth Ave. Corp., 209 A.D.2d 262). However, the court erred in dismissing the third and fourth counterclaims since defendant alleged that not only the European subsidiaries but also plaintiff interfered with its contractual and business advantage. The contention is made directly against plaintiff and thus, is not dependent upon any particular relationship between plaintiff and its subsidiaries.
Concur — Sullivan, J.P., Kupferman, Williams and Tom, JJ.