Weiner v. Memphis Uptown Associates

168 A.D.2d 353, 562 N.Y.S.2d 676, 1990 N.Y. App. Div. LEXIS 15477

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 18, 1990
• Status: Published

Opinion

Order, Supreme Court, New York County (Myriam J. Altman, J.), entered on July 3, 1990, which, inter alia, denied appellant’s motion pursuant to CPLR 3212 for summary judgment, unanimously affirmed, without costs.

Appellant, the purchaser of a condominium apartment, seeks rescission of the purchase agreement and monetary damages based upon material misrepresentations allegedly made by the defendants, the sponsor of the condominium and its managing general partner. Appellant claims entitlement to summary judgment based upon a provision of the offering plan, incorporated in the contract of sale, providing that purchasers had the right to rescind within 15 days after the presentation of an amendment which contained "a material revision adversely affecting the rights, obligations or liabilities of then existing purchasers or reducing the undertakings or obligations of Sponsor”.

The IAS court did not err in determining that summary judgment in appellant’s favor was precluded by triable issues of fact as to whether the appellant had sought rescission within 15 days of presentation of the amendment, and as to whether the changes contained in the amendment were "material revisions” within the meaning of the offering plan and purchase agreement.

We have considered appellant’s remaining contentions, and have found them to be without merit. Concur—Rosenberger, J. P., Asch, Kassal, Wallach and Smith, JJ.