THE CRITERIA FOR JUDICIAL ESTOPPEL WERE NOT MET HERE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, over a dissent, determined plaintiff was not precluded by judicial estoppel from seeking attorney’s fees deemed uncollectible in a bankruptcy proceeding:

Supreme Court incorrectly dismissed the complaint on the ground that judicial estoppel bars plaintiff from seeking attorneys’ fees that were deemed uncollectible in a bankruptcy proceeding. Judicial estoppel applies where it is shown that a debtor omitted or concealed the existence of an asset and later brought suit to collect on that asset … . Here, the court made no such findings, and in fact assumed that plaintiff had not misled the bankruptcy trustee. Nor does the record establish that plaintiff obtained a benefit in the bankruptcy proceeding by taking one position in that proceeding and then assuming a contrary position in this action “simply because [his] interest changed” … . We respectfully disagree with our dissenting colleague that the record establishes that plaintiff unequivocally adopted a conflicting legal position to obtain a bankruptcy discharge. Bohn v Tekulsky, 2025 NY Slip Op 02848, First Dept 5-8-25

Practice Point: In the context of a bankruptcy proceeding, the doctrine of judicial estoppel precludes a debtor from concealing the existence of an asset and subsequently bringing suit to collect on that asset. Although there was a dissent, the majority concluded plaintiff had not misled the bankruptcy court and therefore judicial estoppel did not apply.