Cantor Fitzgerald Inc. v. Cantor Fitzgerald, L.P.

—Order, Supreme Court, New York County (Alice Schlesinger, J.), entered July 12, 2001, which denied counterclaim defendants’ motion to amend their reply to the counterclaims to assert an affirmative defense of payment, unanimously affirmed, with costs. In this action by the former managing general partner against a limited partnership, in which the limited partnership counterclaims for funds allegedly misappropriated by plaintiff and its late principal, the motion court aptly reasoned that the proposed amendment was lacking in merit (see, Adams v Pfizer, Inc., 293 AD2d 291). The counterclaim defendants are judicially estopped from advancing a new position regarding the source of the disputed payments that was contrary to their stance on an earlier tax indemnification claim that had enabled them to prevail (268 AD2d 324, lv denied 95 NY2d 768) against the same party adversary and before the same Justice, and for which they had already received payment of several million dollars (see, D & L Holdings v RCG Goldman Co., 287 AD2d 65, 71-72, lv denied 97 NY2d 611). Concur—Nardelli, J.P., Tom, Rosenberger and Wallach, JJ.