(dissenting). I would affirm, albeit on a different ground than that articulated by Supreme Court. On his cross motion for partial summary judgment, defendant established that plaintiff, in the course of prior litigation between them in 2002, affirmatively and repeatedly represented to Supreme Court that defendant owned seven undeveloped lots in the subject subdivision. Plaintiffs contrary position in this action, namely, that two of these seven lots were omitted from a 1994 deed, violates the doctrine of judicial estoppel, or estoppel against inconsistent positions, which precludes a party from taking a particular position in one proceeding and a contrary or inconsistent position in another proceeding (see e.g. Evergreen Bank v Dashnaw, 262 AD2d 737, 739 n [1999]; Clifton Country Rd. Assoc. v Vinciguerra, 252 AD2d 792, 793 [1998]; Cafferty v Thompson, 223 AD2d 99, 102 [1996], lv denied 88 NY2d 815 [1996]; Moore v County of Clinton, 219 AD2d 131, 134-135 [1996], lv denied 89 NY2d 851 [1996]; Environmental Concern v Larchwood Constr. Corp., 101 AD2d 591, 594 [1984]). Indeed, “[t]he doctrine rests upon the principle that a litigant should not be permitted ... to lead a court to find a fact one way and then contend in another judicial proceeding that the same fact should be found otherwise” (Environmental Concern v Larch-wood Constr. Corp., 101 AD2d at 593 [internal quotation marks and citation omitted]). This is precisely what plaintiff has done here and this Court should not countenance it.
Ordered that the orders are reversed, on the law, with costs, defendant’s cross motion for partial summary judgment denied, plaintiffs motion to dismiss granted and deed reformation counterclaims dismissed.