Coast to Coast Energy, Inc. v Gasarch

Coast to Coast Energy, Inc. v Gasarch 2015 NY Slip Op 02568 Decided on March 26, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 26, 2015
Gonzalez, P.J., Acosta, Moskowitz, Richter, Feinman, JJ.
14639 602044/09

[*1] Coast to Coast Energy, Inc., et al., Plaintiffs-Appellants,

v

Mark Gasarch, et al., Defendants-Respondents, Continental Drilling Corporation, Defendant.

Law Office of Edward J. Boyle, Manhasset (Edward J. Boyle of counsel), for appellants.

Trief & Olk, New York (Barbara E. Olk of counsel), for respondents.

Order, Supreme Court, New York County (Eileen Bransten, J.), entered January 23, 2014, which, to the extent appealed from 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]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 26, 2015

CLERK