Buchheimer v. Buchheimer

42 A.D.2d 522, 344 N.Y.S.2d 491, 1973 N.Y. App. Div. LEXIS 3811

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 7, 1973
• Status: Published

Opinion

Order, Supreme Court, New York County, entered on January 26, 1973, and judgment of said court entered thereon on January 29, 1973, unanimously reversed, on the law, the judgment vacated, and the motion for summary judgment denied, without costs and without disbursements. The action is to rescind a separation agreement on the ground that it was induced by fraudulent representations. The defendant wife concedes that there are issues of fact as to the making of the representations and their materiality.- The basis of her I motion is that the plaintiff did not rely on these representations. Reliance being a subjective state of mind, its presence or absence is virtually always a question of fact, The deductions drawn from certain facts present merely an argument that it is unlikely that plaintiff relied on the claimed representations and do not establish the absence of an issue in the light of plaintiff’s positive averments to the contrary. Concur — Markewich, J. P., Nunez, Lane, Steuer and Capozzoli, JJ.