LORENZO, DAWN M. v. KAHN, M.D., KENNETH R.

Peradotto and Garni, JJ.

(dissenting). We respectfully dissent because, in our view, the doctrine of judicial estoppel is inapplicable to this case. We would therefore affirm the order in appeal No. 2.

As noted by the majority, plaintiff parents commenced a medical malpractice action seeking damages for injuries sustained by plaintiff mother and, derivatively, by plaintiff father based upon complications that arose during the delivery of their son, Hunter. As relevant here, the Hospital defendants, i.e., defendant Kaleida Health, doing business as Children’s Hospital of Buffalo, also known as…