Millman v. Brownlee

Appellate Division of the Supreme Court of New York

Millman v. Brownlee

133 A.D.2d 221, 518 N.Y.S.2d 773, 1987 N.Y. App. Div. LEXIS 49722

CourtAppellate Division of the Supreme Court of the State of New York

DecidedAugust 24, 1987

StatusPublished

Cited by1 cases

This text of 133 A.D.2d 221 (Millman v. Brownlee) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Millman v. Brownlee, 133 A.D.2d 221, 518 N.Y.S.2d 773, 1987 N.Y. App. Div. LEXIS 49722 (N.Y. Ct. App. 1987).

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Opinion

In an action, inter alia, to rescind two contracts of sale and a deed, the defendants appeal, as limited [222]*222by their brief, from stated portions of an order and judgment (one paper) of the Supreme Court, Westchester County (Dachenhausen, J.), entered March 20, 1987, which, inter alia, rescinded the conveyance and awarded counsel fees to the plaintiff, after a nonjury trial.

Ordered that the order and judgment is modified, on the law, by deleting the provision thereof which awarded the plaintiff "the sum of $17,500.00 as and for plaintiff’s expenses, counsel fees”; as so modified, the order and judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for a reassessment of disbursements and the entry of an appropriate amended judgment.

We agree with the trial court’s conclusion, for the reasons expressed by it, that the contracts herein were unconscionable, that the deed delivered thereon must be rescinded, and the conveyance must be set aside. However, inasmuch as there is no contractual or applicable statutory provision for the award of counsel fees, the court’s award thereof was error (see, Matter of Green [Potter], 51 NY2d 627, 629-630, rearg denied 52 NY2d 1073), notwithstanding that the instant action sounded in equity (see, Norstar Bank v Stradford, 125 AD2d 298). Mollen, P. J. Thompson, Bracken and Brown, JJ., concur.

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In an action, inter alia, to rescind two contracts of sale and a deed, the defendants appeal, as limited [222]*222by their brief, from stated portions of an order and judgment (one paper) of the Supreme Court, Westchester County (Dachenhausen, J.), entered March 20, 1987, which, inter alia, rescinded the conveyance and awarded counsel fees to the plaintiff, after a nonjury trial.

Ordered that the order and judgment is modified, on the law, by deleting the provision thereof which awarded the plaintiff "the sum of $17,500.00 as and for plaintiff’s expenses, counsel fees”; as so modified, the order and judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for a reassessment of disbursements and the entry of an appropriate amended judgment.

We agree with the trial court’s conclusion, for the reasons expressed by it, that the contracts herein were unconscionable, that the deed delivered thereon must be rescinded, and the conveyance must be set aside. However, inasmuch as there is no contractual or applicable statutory provision for the award of counsel fees, the court’s award thereof was error (see, Matter of Green [Potter], 51 NY2d 627, 629-630, rearg denied 52 NY2d 1073), notwithstanding that the instant action sounded in equity (see, Norstar Bank v Stradford, 125 AD2d 298). Mollen, P. J. Thompson, Bracken and Brown, JJ., concur.

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Bluebook (online)

133 A.D.2d 221, 518 N.Y.S.2d 773, 1987 N.Y. App. Div. LEXIS 49722, Counsel Stack Legal Research, https://law.counselstack.com/opinion/millman-v-brownlee-nyappdiv-1987.

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