Opinion
August 8, 1994
Appeal from the Supreme Court, Kings County (Hurowitz, J.).
Ordered that the order is affirmed, without costs or disbursements.
Contrary to the contention of the plaintiff, the Supreme Court correctly held that the doctrine of judicial estoppel was inapplicable to the instant case. Generally, judicial estoppel will be applied where a party to an action has secured a judgment in its favor in a prior action by adopting a certain position and then has sought to assume a contrary position in the second action simply because its interests have changed (see, Anonymous v. Anonymous, 137 A.D.2d 739; see also, Northern Metro. Residential Health Care Facility v. Ledri Realty Assocs., 179 A.D.2d 133, 137; Hinman, Straub, Pigors Manning v. Broder, 124 A.D.2d 392, 393). The evidence reveals that the Town of Oyster Bay (hereinafter the Town) did not secure a favorable judgment in prior litigation as a result of its adoption of an inconsistent position regarding the nature of its comprehensive zoning plan (see, Anonymous v. Anonymous, 137 A.D.2d 739, supra).
Furthermore, in view of the existence of mixed questions of law and fact, the Supreme Court properly denied the Town's cross motion for summary judgment (see, Mottes v. Hambrecht Quist, 126 A.D.2d 611). Sullivan, J.P., Lawrence, Pizzuto and Friedmann, JJ., concur.