In my view, the order and judgment of foreclosure, entered December 1, 2005, which, inter alia, granted plaintiffs motion for summary judgment dismissing the affirmative defenses and counterclaims of defendants Euro-American Lodging, Macson and Atlantic Bank in this action, and denied Atlantic Bank’s motion to compel disclosure, should be affirmed.
The motion court correctly determined that the return of the sheriff’s execution on the loan judgment justified plaintiff’s resort to a foreclosure action, and that any bar under RPAPL 1301 no longer existed. The proceeding was timely, plaintiffs right to seek relief in court first accruing when the French court determined that the borrower was in default (see City of New York v State of New York, 40 NY2d 659, 668 [1976]). In view of the foregoing, we need not determine the disputed meaning of the date of maturity under the loan agreement set forth in the French judgment, or whether defendants’ limitations arguments are precluded by factual determinations therein. However, we note that it is uncontroverted that throughout the proceedings in France, from 1992 to 2003, defendant Euro-American Lodging argued, with some success, the position that the loan agreement was valid, CDR’s attempt to accelerate the loan agreement was invalid, the loan agreement had been renewed for five years from May 10, 1996, and, before the Paris Court of Appeal in May 2002, that the maturity date of the agreement should be further extended. Principles of judicial estoppel preclude Euro-American Lodging from arguing at this juncture a position that is diametrically opposed to that successfully asserted in earlier stages of this proceeding (see Gale P Elston, PC. v Dubois, 18 AD3d 301, 303 [2005]; All Terrain Drops, v Hoy, 265 AD2d 87, 93 [2000]; Ford Motor Credit Co. v Colonial Funding Corp., 215 AD2d 435, 436 [1995]).
This Court need not determine whether the interest of the Macson defendants under the Flatotel Franchise Agreement was as leaseholder or merely as licensee. Upon our own review of the record, we find the Macson defendants’ claim that plaintiffs mortgage was subordinated to its interest is barred by the mortgages, and by the absence of either the required clause in the franchise agreement stating it is subordinate to the mortgage or by any other document signed by the lender agreeing to subordinate its interest to that of the Macsons. The defense of waiver was also barred by the terms of the mortgages (see Excel Graphics Tech, v CFG/AGSCB 75 Ninth Ave., 1 AD3d 65 [2003], lv dismissed 2 NY3d 794 [2004]). Atlantic Bank’s *55counterclaim for equitable subrogation and priority of lien, based on its payment of tax liens, was properly dismissed in light of its knowledge of plaintiffs mortgages (see Roth v Porush, 281 AD2d 612, 614 [2001]) and its failure to inquire in the face of the borrower’s assertion that the mortgage was unenforceable.
After due consideration, I also find appellants’ other contentions meritless.
Saxe, J.P., and Malone, J., concur with Catterson, J.; Nardelli and Williams, JJ., dissent in a separate opinion by Williams, J.
Order and judgment of foreclosure (one paper), Supreme Court, New York County, entered December 1, 2005, bringing up for review an order, same court, entered on or about October 11, 2005, modified, on the law, plaintiffs motion for summary judgment denied, defendant’s cross motion to compel discovery granted, and otherwise affirmed, with separate bills of costs in favor of defendants-appellants, and the matter remanded for further proceedings, as indicated.