MADDEN v. COREY (1998)

Order, Supreme Court, New York County (Elliott Wilk, J.), entered March 13, 1997, which, upon reargument, adhered to a prior order of the same court and Justice entered December 17, 1996, denying plaintiff's motion for summary judgment in lieu of complaint and granting defendant's cross motion for summary judgment dismissing the action, unanimously affirmed, with costs.   Appeal from said December 17, 1996 order unanimously dismissed, without costs, as superseded by the appeal from the subsequent March 13, 1997 order.

Plaintiff seeks to recover on a guarantee issued by defendant in connection with two promissory notes in the combined principal amount of $48,000, plus 9% interest from their due dates of January 13, 1984 and December 31, 1985.   In plaintiff's voluntary bankruptcy proceeding, he listed the notes and their face amounts, but represented that the total value of his personal property was $9,276.91.   The trustee in bankruptcy was apparently convinced by plaintiff that the notes were uncollectible, because he did not seek to recover on them for the benefit of plaintiff's creditors.   The doctrine of judicial estoppel was appropriately applied to prevent plaintiff from now claiming the notes are valid and collectible, in light of the inconsistent position adopted by him in the bankruptcy proceeding (see, Environmental Concern v. Larchwood Constr. Corp., 101 A.D.2d 591, 593, 476 N.Y.S.2d 175;  Payless Wholesale Dist. v. Alberto Culver, 989 F.2d 570, 571, cert. denied 510 U.S. 931, 114 S.Ct. 344, 126 L.Ed.2d 309).

MEMORANDUM DECISION.