This action presents yet another dispute
In November 1988, the Town made formal demand for parcel 3. On January 5, 1989, plaintiff informed defendant that it was ready, willing and able to close on both parcels 2 and 3. Defendant refused to agree on a closing date and plaintiff subsequently commenced an action to compel his specific performance as to parcel 2. Although denied this relief by Supreme Court, on appeal we directed specific performance in favor of plaintiff (Clifton Country Rd. Assocs. v Vinciguerra, 195 A.D.2d 895, supra).
In early 1991, plaintiff and the Town agreed that, in view of plaintiff's inability to convey parcel 3, the Town would accept $250,000 "in lieu of the four (4) acres of land", and the Town
We agree with defendant that he was entitled to summary judgment on plaintiff's cause of action for specific performance. Based upon its assertions in prior proceedings, plaintiff is judicially estopped from now claiming that it did not assign its rights in parcel 3 to the Town. Under the doctrine of judicial estoppel, or estoppel against inconsistent positions, a party is precluded from "`inequitably adopting a position directly contrary to or inconsistent with an earlier assumed position in the same proceeding or in a prior proceeding'" (Inter-Power of N. Y. v Niagara Mohawk Power Corp., 208 A.D.2d 1073, 1075, quoting Shepardson v Town of Schodack, 195 A.D.2d 630, 632, affd 83 N.Y.2d 894). Once clearly asserted by the party against whom the doctrine is invoked, the party is bound by such prior stance (see, Cafferty v Thompson, 223 A.D.2d 99, lv denied 88 N.Y.2d 815; Moore v County of Clinton, 219 A.D.2d 131, lv denied 89 N.Y.2d 851; Environmental Concern v Larchwood Constr. Corp., 101 A.D.2d 591).
In the prior action seeking specific performance as to parcel 2, upon the same contract and subsequent agreements involved here, plaintiff unequivocally represented to this Court, in an affidavit seeking permission for late filing of its appeal, that "the Court will be asked to take judicial notice of the fact that there has been a change of circumstance * * * This change of circumstance is evidenced by a pending action between the parties [the instant action] of which the Court may properly take judicial notice. * * * [P]laintiff has given up its claim to the conveyance of [parcel 3] * * * Therefore * * * the specific performance of the contract which plaintiff seeks in this appeal would not render the defendant's served lands landlocked." Contrary to plaintiff's claim that these statements were made
Neither do we find the existence of any triable question of fact concerning plaintiff's entitlement to summary judgment on its cause of action for breach of contract. As a direct result of defendant's refusal to convey parcel 3 to plaintiff, so as to enable plaintiff to comply with its agreement with the Town, plaintiff was damaged in the amount of $170,000 ($250,000 less $80,000).
In view of our decision, we do not reach the parties' remaining contentions.
Ordered that the order is modified, on the law, without costs, by reversing so much thereof as denied defendant's motion with regard to the cause of action for specific performance and denied plaintiff's motion with regard to the cause of action for breach of contract; defendant is awarded summary judgment dismissing the cause of action for specific performance, plaintiff is awarded summary judgment on its cause of action for breach of contract, and defendant's counterclaim is dismissed; and, as so modified, affirmed.