Netherby Ltd. v. G.V. Trademark Investments, Ltd.

261 A.D.2d 160, 689 N.Y.S.2d 489, 1999 N.Y. App. Div. LEXIS 4586

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 6, 1999
• Status: Published

Opinion

—Order, Supreme Court, New York County (Ira Gammerman, J.), entered July 10, 1998, which declared that plaintiff could rescind the subject 1995 settlement agreement only if it returned all the monies it received thereunder, and order, same court and Justice, entered on or about September 8, 1998, which denied plaintiff’s motion to renew, unanimously affirmed, without costs.

CPLR 3004 does not avail plaintiff since, by its terms, it applies only to rescissions that are sought because of “fraud, misrepresentation, mistake, duress, infancy or incompetency”, whereas here plaintiff seeks to rescind on the basis of a claimed contractual right to repudiate (Walker v Arpindo Corp., 194 AD2d 503; see generally, Cox v Stokes, 156 NY 491, 506-507). In any event, we perceive no equities warranting plaintiff’s retention of the monies it received under the settlement it now seeks to rescind, and, contrary to its assertion, the “undisputed” monies it received are indeed disputed by defendants. Concur— Williams, J. P., Rubin, Mazzarelli, Andrias and Buckley, JJ.