Judicial estoppel is an equitable doctrine which prevents a litigant from taking a position which is inconsistent with the position it previously took in earlier litigation. Another phrase might be “flip-flopping.”

In Lending Assets, LLC v Gerbi 2026 NY Slip Op 00472 Decided on February 03, 2026
Appellate Division, First Department defendants were able to invoke this principle.

“Supreme Court properly dismissed this action, as the documentary evidence submitted by defendants in support of their motion to dismiss utterly refutes an essential element of plaintiff’s legal malpractice claims — specifically, that defendants had a nondelegable duty to obtain valid title policies and ensure that certain mortgages were recorded in first lien positions (see Mill Fin., LLC v Gillett, 122 AD3d 98, 103 [1st Dept 2014]). Indeed, plaintiff admitted in a complaint in another action that it believed a third party had the duties that plaintiff ascribes to defendants in this complaint, that it relied on this belief to its detriment, and that this reliance led to damages. Thus, negligence, an essential element of a legal malpractice claim, has been “utterly refute[d]” because the allegations in the other complaint amount to a concession that the duties underlying plaintiff’s legal malpractice cause of action are not, in fact, attributable to defendants (CPLR 3211[a][1]; see Excelsior Capital LLC v K&L Gates LLP, 138 AD3d 492, 492 [1st Dept 2016], lv denied 28 NY3d 906 [2016]; see also Yassky v Meltzer, Lippe, Goldstein & Schlissel, P.C., 36 AD3d 420, 421 [1st Dept 2007]). Furthermore, these judicial admissions constitute admissible documentary evidence for purposes of defendants’ motion to dismiss (see New Greenwich Litig. Trustee, LLC v Citco Fund Servs. [Europe] B.V., 145 AD3d 16, 25 [1st Dept 2016], lv denied 29 NY3d 917 [2017]).”