Opinion
June 30, 1998
Appeal from the Supreme Court, New York County (Elliott Wilk, J.).
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; Payless Wholesale Distribs. v. Alberto Culver (P. R.) Inc., 989 F.2d 570, 571, cert denied 510 U.S. 931).
Concur — Milonas, J. P., Rosenberger, Nardelli, Wallach and Rubin, JJ.