TRI-COUNTY MEDICAL GROUP v. FINGERMAN

Although plaintiffs first raised their claim of an offset in a motion to vacate the money judgment of June 23, 1993, the IAS Court did not improvidently exercise its discretion in considering the issue ( see, Smirlock Realty Corp. v. Title Guar. Co., 97 A.D.2d 208, 236, mod on other grounds 63 N.Y.2d 955). We note that the application of the doctrine of judicial estoppel was not required on these facts ( cf., Matter of Town of Southampton [Bill], 220 A.D.2d 752) and that within the four corners of the agreement, there is no language limiting offsets ( cf., Teitelbaum Holdings v. Gold, 48 N.Y.2d 51, 56).

Concur — Sullivan, J.P., Rosenberger, Wallach, Kupferman and Williams, JJ.