Blumenthal v. Tener

227 A.D.2d 183, 642 N.Y.S.2d 26, 1996 N.Y. App. Div. LEXIS 4975

Opinion

Order of the Supreme Court, New York County (Norman Ryp, J.), entered November 30, 1995, which denied defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The option agreement, promissory note and confession of judgment at the heart of this litigation are asserted to have been executed under economic duress. Where one party establishes it entered into an agreement by means of a wrongful threat precluding the exercise of free will, the agreement is voidable on the grounds of duress (Austin Instrument v Loral Corp., 29 NY2d 124, 130). It is clear that the documents at issue were given by plaintiffs, as co-venturers of defendants, in the midst of a real estate development project, when the defendants opted not to go forward with the project, leaving plaintiffs in a precarious position. Supreme Court properly determined that, on this record, there exists a genuine issue of fact as to whether these documents were executed under economic duress and are voidable as such (see, Sosnoff v Carter, 165 AD2d 486). In addition, there is a question of fact whether defendants breached their fiduciary duties to plaintiffs as coventurers. Concur — Murphy, P. J., Rubin, Ross and Tom, JJ.