Coast to Coast Energy, Inc. v. Gasarch

Order, Supreme Court, New York County (Eileen Bransten, J.), entered January 23, 2014, which, to the extent appealed from *622 as limited by the briefs, granted defendants Mark Gasarch and Gasmark Corp.’s (Gasarch and Gasmark) (defendants) motion to dismiss the second amended complaint asserting a cause of action for breach of contract, unanimously affirmed, without costs. Defendants’ motion to dismiss the second amended complaint was properly granted since plaintiffs failed to allege that Gasarch and Gasmark were parties to the contracts at issue. The doctrine of judicial estoppel is inapplicable since there is no inconsistency between Gasarch and Gasmark’s arguments on the prior motion and their current position that they were not parties to the agreement (see Bergman v Indemnity Ins. Co. of N. Am., 275 AD2d 675, 676 [1st Dept 2000]). Concur— Gonzalez, P.J., Acosta, Moskowitz, Richter and Feinman, JJ.