| Popadyn v Clark Constr. & Prop. Maintenance Servs., Inc. |
| 2008 NY Slip Op 02656 [49 AD3d 1335] |
| March 21, 2008 |
| Appellate Division, Fourth Department |
| George Popadyn et al., Appellants, v Clark Construction andProperty Maintenance Services, Inc., Respondent. |
—[*1] Barth Sullivan Behr, Buffalo (Pierre A. Vincent of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Erie County (Christopher J. Burns, J.), enteredOctober 26, 2006. The order granted defendant's motion for summary judgment dismissing thecomplaint.
It is hereby ordered that the order so appealed from is unanimously modified on the law bydenying the motion in part and reinstating the complaint with respect to plaintiff Donna Popadynand as modified the order is affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages they incurred whendefendant, as an agent for HSBC Mortgage Corporation, participated in evicting plaintiffs fromtheir home by moving their personal property to a storage facility in 2001. According toplaintiffs, some of their property was damaged or missing when they redeemed it, and the valueof their property after it was redeemed was reduced from $90,000 to $10,000. Supreme Courtproperly granted that part of defendant's motion for summary judgment dismissing the complaintwith respect to plaintiff husband. The record establishes that, although he had declaredbankruptcy in the year 2000 and had many of his debts discharged in the course of the bankruptcyproceeding, he failed to list items for which he now seeks recovery. Indeed, the record establishesthat his bankruptcy filing set forth that his personal property assets were in the amount of only$1,220. "The doctrine of judicial estoppel provides that where a party assumes a position in alegal proceeding and succeeds in maintaining that position, that party may not subsequentlyassume a contrary position because [his] interests have changed . . . In a bankruptcycontext, judicial estoppel prevents a party from prosecuting claims not disclosed in a bankruptcyproceeding that resulted in the party's discharge" (McIntosh Bldrs. v Ball, 264 AD2d 869,870 [1999]). We further conclude, however, that the court erred in granting that part ofdefendant's motion with respect to plaintiff wife, inasmuch as she was not involved in thebankruptcy proceeding and was at least part owner of much of the disputed property. Wetherefore modify the order accordingly. Present—Scudder, P.J., Hurlbutt, Lunn, Pine andGorski, JJ.