BERGMAN v. INDEMNITY INSURANCE CO

The IAS court correctly held the doctrine of judicial estoppel inapplicable to preclude defendant from asserting that the property was rendered valueless by the May 9, 1990 fire. The statement on which plaintiff asserts the estoppel was made by defense counsel in a motion subsequent to plaintiff's amendment of his complaint to seek damages arising from the March 30, 1990, and not the May 9, 1990, fire. Plaintiff made the decision to focus upon the March 30, 1990 fire of his own accord and there is no indication that he altered his position to his detriment in reliance on the challenged statement. Moreover, the statement speculates on plaintiff's motivation and is not definitive as to defendant's position respecting the damage attributable to each of the two fires. Thus, plaintiff has not established a true inconsistency between the statement and defendant's current position (see, McGarvin v. J.M. Weller Assocs., ___ A.D.2d ___, 710 N.Y.S.2d 143; Bellevue S. Assoc. v. HRH Constr., 184 A.D.2d 221, lv denied 80 N.Y.2d 758).

Nor, contrary to plaintiff's claim, is there any basis for permitting amendment of the complaint to conform to trial evidence of damage to the subject premises between March 31, 1990 and June 1, 1990. This Court has previously held that the fire occurring on March 30, 1990 did not relate to the May 9, 1990 fire upon which the original complaint was premised, and, in so holding, necessarily determined that each fire was a separate incident to be judged on its own with respect to the applicable two-year Statute of Limitations (see, Bergman v. Indem. Ins. Co. of N. Am., 232 A.D.2d 271). The amended complaint seeks damages relating to the March 30, 1990 fire only. Amendment of that complaint, based upon a separate transaction of which it gave no notice, would be barred because the applicable two-year limitations period has long since expired (see, Thompson v. Pittman, 123 A.D.2d 683, 687). While leave to amend a complaint is generally "freely given" (see CPLR 3025[b]), amendment cannot be permitted as a means of reviving a time-barred action (see, Lennox v. Rhodes, 39 A.D.2d 801.)

We have considered plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT .