Opinion
February 1, 1996
Appeal from the Supreme Court, New York County (Ira Gammerman, J.).
The IAS Court judicially estopped plaintiff from asserting the debt sued upon because of its failure to list the debt in an earlier bankruptcy proceeding it had filed, as required by 11 U.S.C. § 521 (1). Plaintiff argues that even assuming that its position in the bankruptcy proceeding was inconsistent with its present assertion of the debt, the doctrine of judicial estoppel does not apply since the bankruptcy proceeding was dismissed on stipulation of the parties thereto. While a settlement does not constitute a "'"judicial endorsement"'" of either party's claims or theories and thus does not provide the prior success necessary for judicial estoppel ( Bates v. Long Is. R.R. Co., 997 F.2d 1028, 1038, cert denied 510 U.S. 992; Chemical Bank v. Aetna Ins. Co., 99 Misc.2d 803), here, the stipulation was so-ordered by the court, which thereby inferentially endorsed plaintiff's then position concerning its assets, satisfying the "'prior success'" element necessary for judicial estoppel ( Reynolds v. Commissioner of Internal Revenue, 861 F.2d 469, 473). We have reviewed plaintiff's other claims, that it made the loan for the benefit of its president within the meaning of CPLR 1004, or that this action should have been allowed to proceed with plaintiff's president joined as a party, and find them to be without merit.
Concur — Sullivan, J.P., Wallach, Rubin and Tom, JJ.